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CONTESTED-ELECTION CASE OF 

WICKERSHAM v. SULZER (DECEASED) AND GRIGSBY 


HEARINGS 

BEFORE THE 

COMMITTEE ON ELECTIONS No. 3 

HOUSE OF REPRESENTATIVES 

SIXTY-SIXTH CONGRESS 
SECOND SESSION 

ON THE 

CONTESTED-ELECTION CASE OF 

JAMES WICKERSHAM v. CHAS. A. SULZER, Deceased 
AND GEO. B. GRIGSBY 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 
181744 1920. 









LIBRARY OF CONGRESS 


DEC 18 1936 

DIVISION OF DOCUMENTS 










WICKERSHAM v. SULZER (DECEASED) AND GRIGSRY. f 


Committee on Elections No. 3, 

House of Representatives, 

Tuesday^ March 23^ 1920. 

The committee met at 11 o’clock a. m., Hon. Cassius C. Dowell 
(chairman) presiding. 

The Chairman. A quorum being present, the committee will now 
come to order. The committee has met for the purpose of hearing 
the arguments and statements of counsel in the contested election 
case of James Wickersham r. Charles A. Sulzer and George B. 
Grigsby. The committee is now ready to proceed with the argu¬ 
ments. Judge Wickersham you may now proceed with your state¬ 
ment of the case. 

STATEMENT OF HON. JAMES WICKERSHAM, CONTESTANT. 

Mr. Wickersham. Mr. Chairman, for fear the members of the 
committee have not gone over the brief as it has been submitted, and 
for fear that the members of the committee would not have the facts 
with relation to this Alaska contest in their minds, I will go over the 
various phases of it so that you will have a general view to start 
with. 

In 1916 there was a contest arose over the election of the Delegates 
in Alaska. At the time the canvassing board finished canvassing 
and compiling the returns of 1916 I had a majority of 31 to 33 votes. 
Mr. Sulzer was a candidate against me in 1916. He and I Avere 
the Republican and Democratic candidates, respecti^^ely. There Avas 
a Socialist tj^ndidate then who had about one-fifth as many votes as 
either one of us. e three aa ere the candidates, and I had a plurality 
of about 31 or 33 votes oA-er Mr. Sulzer at that time. I Avas in 
Washington at that time and Mr. Sulzer Avas in Juneau, the capital 
of Alaska. A suit Avas brought by him before the court there and 
an injunction issued to restrain the canvassing board from issuing a 
certificate, and after the hearing the judge of the district court there 
threw out the returns from five or six of the precincts in Avhich I 
had a considerable majority, and by throAving those precincts out it 
left me without a majority and gave Mr. Sulzer 19 upon the exclu¬ 
sion of those precincts, and the court then directed the canvassing 
board to issue a certificate to him. Now, the canvassing board Avas 
Democratic. It consists in Alaska of the governor, the secretary of 
the Territory, and the collector of customs, and at all times in these 
various controversies and'contests has been a Democratic canvassing 
board. 

Mr. Chindblom. Did you mean to say the secretary ? 


3 



4 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. Wk'keksiiam. The secretary of the Territory. 

]\rr. CrriNDBEOM. Was it not the surve3^or general? 

Mr. WiCKEKsiiAM. The secretary and the surveyor general are one 
and the same. I think he is named as the snrv^eyor general, but he 
is one and the same person, and he is a member of the canvassing 
boai'd, together with the governor and the collector of customs. 
xVlaska is a Territory, and all of our officials in Alaska are appointed 
from Washington, all except recently the Legislature of Alaska has 
provided for the election of an attorney general for the Territory. 
He is a Territorial official, and is elected by the people of the Ter¬ 
ritory. Congress has provided for the election of a Territorial leg¬ 
islature, and those two, the attorney general and members of the 
legislature, are the only elected offices in the Territory of Alaska. 
All of the others are appointed, and they are all either appointed 
from Washington or are appointed by those who are appointed from 
Washington. We have substantially in Alaska a Territorial form of 
government, appointed by the party in power, and of course for the 
last eight years the party in power has been the Democratic Partly, 
and all of our officials in that way have been Democratic. 

Mr. O'Connor. Who are the elective officials? 

Mr. Wickersham. The attorney general and the members of the 
legislature are the elective officials. After the court in Alaska had 
empowered the Democratic canvassing board to issue a certificate to 
Mr. KSulzer in 1916 I brought a contest. That contest was brought 
just as promptly as it was possible for me to bring the contest after 
the action of the court in compelling the canvassing board to give a 
certificate to Mr. Sulzer. It was brought on March 4, 1917, the 
election having been held on November 7, 1916. I brought the con¬ 
test immediatel.y, and Alaska is a long ways off. It takes a long 
time to go out there and get testimony. It took me a long time then, 
and when we got down here in Washington the matter was held 
up before we could get committee meetings, and we could not get 
this and that thing done, and the matter was held up so indefinitely 
that it was not until January, 1919, that we got anything done with 
that case. It was from November 7, 1916, to January 7, 1919, before 
we got action on our contest before the House of Representatives. 

Mr. CniNDBLo.Ar. Do jmu not mean 1918? 

Mr. Wickersham. No; I mean 1919. 

Mr. CniNDBLOM. Your brief says 1918. 

Mr. Wickersham. It is a mistake; it should be 1919. 

Mr. Chindblom. I call attention to page 4 of your brief and argu¬ 
ment, the last paragraph entitled 2. The second Alaskan contest, 
1918.’' 

Mr. Wickersham. That is a mistake, it was 1919. Is that not cor¬ 
rect, Mr. Grigsby? 

Mr. Grigsby. The final disposition Avas in 1919; the hearings Avere 
in 1918. 

Mr. Wickersham. That is a mistake then in the brief. It should 
be January 7, 1919. It was not until then that we got final action 
on it, and only a few days before Congress expired on ^larch 4, 1919, 
so that I got to serve only three or four days out of the whole two 
years. 

Mr. O’Connor. What was the result of that contest? 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


5 


Mr. WiCKERSHAM. I Avas seated. The committee when it finally 
got to it found in my favor, and the House sustained the action of the 
committee and I Avas seated. 

Noav, in 1918, at the election AA^e had a very close vote again. The 
election in 1918 AA^as held on NoA:ember 5, and the report of the elec¬ 
tions committee, they having considered it fpr almost a year, Avas 
not made until 29 days after the election of NbA^mher 5—on Decem¬ 
ber 4, 1918, 29 days after the election in Alaska. Of course, you can 
imagine AA^hat transpired in connection AAdth the matter of Alaska in 
the meantime. It Avas the same old story oA’er again. The same 
frauds AA^ere perpetrated on November 5, 1918, that Avere perpetrated 
on NoA^mber 7, 1916, Iavo years before, because the committee had 
not decided the case. The committee had not decided that until after 
the election, 29 days. 

One of the principal points of contest in the election of 1916 Avas 
the vote of the large number of nonresident soldiers in Alaska. The 
same nonresident soldiers, not the identical same soldiers, but the 
soldiers stationed there voted in 1918 on November 5, that voted 
under the same circumstances that they did in 1916. 

Mr. O’Connor. What Avas done Avith the soldiers’ votes in that con¬ 
test? IVere they excluded? 

Mr. WiCKERSHAM. They Avere excluded by the committee. 

Mr. Elliott. Hoav many soldiers’ votes Avere excluded in 1916? 

Mr. WiCKERSHAM. Tliirty-four or 36. 

Mr. Elliott. Hoav many of those 36 soldiers voted at this election ? 

Mr. AVickersham. In this last election only 1, Louis Selk, of Fort 
Gibbon, is the only one of those 36 that voted in 1918 avIio also voted 
in 1916, the other men all haAung left Alaska in the meantime. 

Mr. Elliott. At this last election, the one noAv in question, Iioav 
many soldiers voted at that election ? 

Mr. Chindblom. Of Avhose votes you complain? 

Mr. AYickersham. Forty-three and twenty-three; that is sixty-six, 
I think. 

Mr. Chindblom. Hoav many of the soldiers voted for Mr. Sulzer? 

Mr. MTckershaai. All but three, that I knoAv of. 

Mr. Chinblom. And Avhom did the three A^ote for ? 

Mr. WiCKERSHAM. Tliose three A^oted for me. 

Mr. O’Connor. How did you knoAv that? 

Mr. AVickersham. By putting them on the Avitness stand and 
asking them. 

Mr. O’Connor. Is that all in the record ? 

IMr. AVickeram. Yes. Of course, some of them refused to ansAA^er. 

Mr. O’Connor. Hoav many did you say voted for Mr. Sulzer? 

Mr. AATcker^am. They are all named in the brief; something like 
25 or 30 of them, dliey are all named in the brief separately. 

Mr. Chindblom. The face of the returns showed Mr. Sulzer to 
have been elected by 33 Azotes—a plurality of 33 Azotes. 

Mr. AA^ickersham. Yes. 

Mr. Chindblom. There were not that many soldiers Avho voted, as 
you claim, illegally, in 1918, AA^ere there? 

Mr. AAYckersham. Yes, sir; more than that. 

Mr. Chindblom. And of those looting for Mr. Sulzer you have 


proof ? 







6 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Mr. M^ickersham. Yes; I think so. 

Mr. CitTXDBEOM. Then there are more than 25, as you stated a 
moment ago? 

Mr. WicKi]RSHAM. Yes, sir. 

Mr. Chixdbeom. How many are there? Can we have that in¬ 
formation right now ? 

Mr. AYickersham. Yes, sir; I will show it to you. 

Mr. Chindblom. I am wondering whether we can not narrow this 
down to same specific issue. 

The Chairman. All right, if you can. 

Mr. Chindblom. Is it in the printed document? 

Mr. IViCKERSHAM. It is. 

Mr. Elliott. I would suggest that Mr. Wickersham, who is very 
familiar with all these names, give us the names of the ones who 
voted for Mr. Sulzer. 

Mr. CniNDBLO^r. There is no purpose here to attempt to recanvass 
the entire vote, is there ? 

Mr. IYickersham. No. Nobody has asked for that. 

Mr. Grigsby. I don’t think so. 

Mr. Elliott. Are there not some contested ballots before the com¬ 
mittee to be counted ? 

Mr. Wicki:rshaai. There are some rejected ballots to be exam¬ 
ined. Yes. 

Mr. CniNDimoM. IVe are not expected to count the entire vote? 

Mr. IVickersham. No. 

Mr. Chindblom. So that the matter before us will be to a large, 
extent disputed ballots and disputes as to the legality of the votes 
cast and as to the rejection of votes which might have been legally 
offered? Is that the situation? 

Mr. IViCKERSHAM. Very largely. 

Mr. Grigsby. Yes. 

Mr. O’Connor. The canvass shows that he has been defeated by 
33 votes. You say there were illegal votes cast, which will reduce 
that and would give you a majority? 

Mr. AVickersham. Yes. 

. The Chairman. Is there any question between you in the record 
as to whether or not the questions now that are being presented to 
the committee have been properly raised by your notices that have 
been served with reference to the contest and answer? 

Mr. MTckersham. Yes; there are questions of that kind in the 
record—preliminary questions. 

Mr. Chindblom. Those are questions of demurrer. 

The Chairman. Those are legal questions and ought to be taken 
up separately from the other. 

Mr. MTckersham. There are questions of that kind. 

Mr. Grigsby. Of course, there are disputes all the way through as 
to the evidence. 

The Chairman. We understand that there will be questions of 
fact that will be disputed. What I am getting at is whether or not 
these questions have been legally raised on your pleadings. 

Mr. Grigsby. I was not aware of any questions of that kind. 

The Chairman. I did not know; I was just making an inquiry. 

Mr. Hudspeth. You have no statute. Judge, in Alaska, as to the 
number of the ballot that a man casts, the number he may have on 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


7 


the ballot list and on the poll list. For instance, in Texas^ my name, 
C. B. Hudspeth, is written on the poll list as No. 10 and then No. 
10 is placed on my ballot. Have you such a statute? 

Mr. WiCKERSHAM. No. 

Mr. Hudspeth. You have no way then of identifying the ballot? 

Mr. WiCKERSHAM. No. 

Mr. Hudspeth. The only way you can determine as to how these 
respective voters voted is bv putting them on the stand and asking 
them ? 

Mr. WiCKERSHAM. Yes, sir; by evidence outside of the ballot. 

Mr. Hudspeth. What other evidence could you have except the 
man’s own statement? 

Mr. WiCKERSHAM. It is simply evidence going to show how he 
voted, of course. 

Mr. CiiiNDBLOM. It is possible that some bystander may have 
seen the ballot. 

Mr. WiCKERSHAvi. He might have informed people how he voted. 

Mr. Chixdblom. People frequently state the reverse of how they 
voted. 

Mr. WiCKERSHAM. I know that. That is one of the things that I 
am going to try to make clear to you that has been done in this case. 

Mr. CniNDBLOM. A man might mislead another man and say, “ I 
voted for you,” and tell some other man how he did actually vote. 
That is what I wanted to find out as to these contested votes that 
you say were illegally cast, whether you ascertained that fact from 
testimony from the identical persons on the stand ? 

Mr. WiCKERSHAM. I tried to. Now, Mr. Chairman, I think this 
committee ought to let me make some preliminary statement before 
we get to the list—not just settle this thing offhand, because you 
can not do it that way. 

The Chairman. Yes; I am inclined to do that. 

^Ir. WiCKERSHA3i. It is impossible to do what you suggest. I 
have got that list already prepared. I have got a list of every vote 
I challenged and the precinct in which it is located and the precise 
pages in the record where the testimony is to be found with respect 
to it. I have got a list of 225 names that I challenged, everyone of 
them down there in regular order in their own precincts, but you 
can not determine anything from that. I am going to present it. I 
have got copies for each one of the committee and for my opponent, 
so that you may have it before you. 

Mr. Chindblom. Nobody intends to prevent you from presenting 
anything, but we would like to have the list presented as early as 
possible. 

Mr. WiCKERSHAM. I have it prepared, but I have not got it here. 

The Chairman. Proceed with your argument in your own way. 

Mr. WiCKERSHAM. On the other matter I take up, beginning on 
page 26 of my brief, you will find I take up Mr. Sulzer as a voter, and 
I have the evidence to show that his vote was illegal. On the next page 
you will find the name of George A. Nix and the evidence to show that 
his vote was illegal, and so on every page. I take up the illegality of 
these votes on each page, and when you get over to the soldiers’ votes 
I take up this matter, beginning on page 81, and I hope you will turn 
to page 81 and see that I take up every one of these voters and present 





8 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


the evidence with respect to his vote, and that matter is done in the 
greatest detail. As I told yon, I have this list. There are a great 
many other matters I Avish to settle before you reach that, and I hope 
the committee Avill let me present this matter, and I will do it very 
briefly, because I Avant this case settled as early as possible. I have 
been for a long time trying to get the eAudence before this committee. 

The Chairman. Present it in your own way. 

Mr. WicKERSHAM. In the former case. House report No. 839, Sixty- 
fifth Congress, in stating the issues to the Committee on Elections No. 
1, the final conclusion of the committee Avas that the merits of the case 
Avere confined to matters involved in certain proceedings had before 
the judge of the United States District Court of Alaska, first division. 

Those are the proceedings that I told you about Avherein Mr. Sulzer 
brought suit and the precincts Avere cast out and I lost the majority 
by the throAving out of those precincts. The committee took that up 
and decided that the court was Avrong in haAung cast out those pre¬ 
cincts. Second, the legality of the votes cast by native Indians in 
certain sections of the Territory Avas considered by the committee. 
Third, the legality of the votes cast by he soldiers stationed at Fort 
Gibbon who Amted there and the votes of other soldiers in the Army 
who Amted at Eagle precinct were considered. 

Those are the three principal points considered by the committee in 
the other case, and they Avere decided in my faAmr. I call that to your 
attention because A^ery largely these same identical matters invoh^ed 
in this case are the same legal propositions inAmlved in that case and 
are now to be again decided by this committee. They are not the same 
identical soldiers but soldiers under the same legal conditions who 
voted this time, sufficient to do away with the majority of the other 
side and give me a majority now, if you adopt the same rule that 
the Democratic committee of the last House adopted. 

Mr. Chindblom. You say Democratic committee; was there any 
division in the committee ? 

Mr. WicKERSHAM. No, sir; it was a Democratic House and the 
majority of the committee were Democrats. 

Mr. Chindblom. There was no diAusion in that case? 

Mr. AYickersham. No. 

Mr. O’Connor. Are you asking that the entire soldier vote be 
excluded, regardless of whether they Amted for you or for Mr. 
Grigsby ? 

Mr. Wicio:rsham. Absolutely. 

Mr. O’Connor. How would that affect the result? 

Mr. WicKERSHAM. That would give me a majority. 

Mr. O’Connor. By throAving out the soldier Amte? 

Mr. WicKERSHAM. Yes. 

Mr. O’Connor. Hoav do you figure that out mathematically. If 
there were 200 votes cast, of Avhich I had only 110 and you had 90, 
and 70 votes were throAvn out of the 200, hoAv is that going to give 
you a majority? Do you Avant to throAv them out entirely regard¬ 
less of whether they voted for you or Mr. Grigsby ? 

Mr. WicicERSHAM. Yes; I mean that the soldiers’ Amtes aaAio Amted 
illegally ought to be throAvn out whether they Amted for Mr. Grigsby 
or for me. 

Mr. O’Connor. My purpose Avas to ask you if you wanted them 
excluded entirely. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Mr. WiCKERSHAM. No; only those excluded who voted illegally. 

Mr. O’Connor. Those, you claim, were the votes that were cast 
for Mr. Grigsby. 

Mr. WiCKERSHAM. Yes, sir. 

Mr. Elliott. There are some in there no one knows for Avhom 
they had voted, and you can not throw them out. 

Mr. MTckersham. That identical condition arose before and they 
divided equally the votes of those who voted illegally and we did 
not show who they voted for. The committee the other time divided 
them up in the proportion as we received the vote in the precincts. 

Mr. Elliott. Do you mean they prorated them and threw the 
whole bunch out? 

Mr. WiCKERSHAM. Yes. 

Mr. O’Connor. If there Avere 200 votes and you had 100, and 
they threw out 50, and that proportion Avas maintained as to the 
Avhole, hoAv AV'ould such elimination affect the result ? 

Mr. Chindblom. We have got to haA^e all the facts and all the 
circumstances before we can begin to have an opinion. 

Mr. WiCKERSHAM. That is my purpose. 

Mr. O’Connor. The spark of truth will fly AAdien the discussion of 
it begins. 

Mr. WiCKERSHAM. That is based on the record of the other con¬ 
test. That is to say, specifically, some of the legal authorities in¬ 
volved in this case Avere iiiAmh^ed in the other, and, especially, that 
the same difficulties arose and the same frauds Avere perpetrated at 
this election as Avere perpetrated at the other election. That is the 
purpose of it. It is not an issue in this case. There is nothing Avith 
respect to the former contest that is in issue before the committee. 
It has not been plead in the pleadings, and there is no evidence Avith 
respect to it especially to make an issue in this case. There is some, 
but not enough. I only refer to it so that you may knoAV something 
of the history of this contest. 

Mr. Chindblom. Do you claim that frauds Avere perpetrated? 

Mr. WiCKERSHAM. Absolutely. The second Alaskan contest arose 
from the election of NoA^ember 5, 1918, when I Avas a candidate on 
the Kepublican ticket and Mr. Sulzer on the Democratic ticket, and 
the same soldier vote Avas cast, and it was cast almost unanimously 
for Mr. Sulzer. I have the evidence which will convince you about 
that to shoAv that he received every one of the illegal soldier votes. 
All of those Ave have been able to get on the Avitness stand to testify 
haA^e specifically admitted that they voted for Mr. Sulzer. Two or 
possibly three—we quarrel about one of them—but three voted for 
me. With that exception they are shoAvn to have all voted for Mr. 
Sulzer. 

Mr. Hudspeth. What authority of laAv has a soldier to Amte in 
Alaska ? 

Mr. WiCKERSHAM. A nonresident soldier has no authority of laAV 
to vote. They are stationed in different places. 

Mr. Hudspeth. Have you a statute that permits soldiers to vote? 

Mr. WiCKERSHAM. A resident soldier has the right to vote if he is 
in his own precinct. A resident soldier has the right to vote in his 
OAvn precinct. 

Mr. Ellioiu’. That is on the theory that he does not lose his resi¬ 
dence by going into the Army ? 








J 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Ml’. WiCKEKsiiAxM. No; he does not lose his residence. 

Mr. Elliott. The other is on the theory that he does not gain 
residence by being stationed somewhere else. 

Mr. MTckersiiam. The authorities cover that. Those seldiers 
who were enlisted in Alaska or who were drafted in Alaska have 
the right to vote in their own precinct just the same as 5 u>u would 
in Louisiana. 

Mr. Elliott. They may vote, although they are in the military 
service ? 

Mr. M'ickersiiavi. Yes; if they were in their own precincts. 

Mr. Hudspeth. I know the constitution of the State of Texas bars 
soldiers from voting as nonresidents, soldiers, sailors, and marines, 

Mr. Hays. That same thing applies in Missouri. 

The Chairman. I understand that your position is that the sol¬ 
dier’s residence is not affected in any way by reason of being in the 
service ? 

Mr. M^ickersham. It is not. 

The Chairman. And if he is in the service and he is legally en¬ 
titled to vote, he is permitted to vote. 

Mr. Wickersham. That is my judgment. 

The Chairman. Ihit he can only vote if he is a resident. 

Mr. Wickersham. The authorities are all one way on that iiropo' 
sition. 

Mr. Elliott. There are one or two questions raised here. Where a 
man married up there in Alaska has acquired a residence there and 
votes, it might be different from ordinary cases. 

Mr. AVickersham. Yes; but liow can he acquire a residence Avhen 
he is not there subject to his own volition ? He is ordered there by the 
United States Government as a soldier and may be ordered away at 
any moment. AVhen they go they pick up tlieir wives and chattels and 
various things they have gathered around their cantonment and away 
they go. They do that in every place Avhere soldiers are congregated— 
around every fort. That is universal where soldiers get married and 
move around all over the country. 

Mr. O’Connor. How about the woman he marries—does she lose 
her right to vote ? 

Mr. AA'ickersham. I propose to present authority to show that the 
husband and wife constitute a family and both have the same rights— 
that is to say, the family—as to residence. The husband and the wife 
have the same residence as long as they live together as husband and 
wife. If they separate or get divorced or separate themselves with the 
intention of remaining apart, then they no longer constitute a family, 
and they might acquire separate residences; but as long as they con¬ 
stitute a family they have only one residence; tliey can not have two 
residences. 

The CiiAimiAN. Hav^e you any authority, Mr. M^ickersham, where 
the woman has a legal residence and a voting residence in the precinct 
where she marries a husband who is not a resident of the precinct and 
not a resident of the territory—does that in any manner affect her 
legal status as a Amter? Are there any authorities on the question? 

Mr. AVickersham. I do not knoAv of one. 

Mr. O’Connor. AAliat do you tliink about that yourself. Judge? 
Has she lost her right? 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 11 


Mr. M icKERSHAM. I think so, just as though she married a foi* 
eigner. She loses her vote and her citizenship in this country if she 
marries a foreigner. 

Mr. O’Connor. How about if she marries a soldier of this country? 

Mr. WicKERSHAM. The husband, not being a resident in the dis¬ 
trict or precinct, if she marries, he establishes a residence under the 
universal rule. While I have not the authority at hand I think it 
applies to the husband with respect to voting as well as the wife; 
the universal rule is she gains residence for all purposes, including 
the privilege of voting. 

The Ch AIRMAN. What is the rule Avith reference to voting, if you 
have any authority on it, when an American Avoman marries a 
foreigner ? 

Mr. WicKERSHAM. The day before election? 

The Chairman. Yes. 

Mr. WicKERSHAM. She loses not only her right to vote but also 
her citizenship, by the ceremony. 

The Chairman. Have you any authority on that? 

Mr. WicKERSHAM. There is authority of Irav for that. 

Mr. Chindblom. Our naturalization laAv provides that. 

Air. O’Connor. Then, a man that serves his country not only loses 
his political right to cast a Amte, but his Avife also loses by marrying 
u soldier her right to Amte? 

IMr. WicKERSHAM. No ; I say she loses it in that precinct. 

Mr. O’Connor. Where else can she exercise it ? 

Air. WicKERSHAM. In the precinct where he lives Avhen she has 
liA^ed there the requisite time. You Avould have this situation; You 
Avould have the husband voting in one State and the Avife Amting in 
another State and precinct although they constitute one family. AYu 
can not find any authority for that. 

Air. O’Connor. She Avill have a vote of her own under the con¬ 
stitutional amendment ? 

Air. WicKERSHAM. Yes: but Avhen they constitute a family they 
liaA^e to Amte in the same place. 

Air. Chindblom. Assume that a soldier has a Amte and residence in 
Illinois. He goes to Alaska and marries a Avidow avIio has a domicile 
and household goods, can not he make that his home from the time 
he marries her? 

Air. WicKERSHAM. Yes. 

Air. Chindblom. Can not he change his domicile Avhile in the 
serAuce, if he is in the Army ? 

Air. WicKERSHAM. No; the authorities are that he can not. 

Mr. Chindblom. By marriage? 

Mr. WicKERSHAM. No. 

Mr. O’Connor. AYur contention is that neither he nor she can Amte 
in that precinct? 

Mr. WicKERSHAM. Yes. I have only one case of that kind in this 
record. There is only one instance of that kind. 

The Chairman. What do you say to this: iVssuming that you are 
correct that upon the marriage the wife assumes the residence of the 
husband, but for the purpose of Acting, this soldier is a resident of 
Illinois in a certain precinct, and he marries in Alaska. He returns 
to the precinct in Illinois the day before election ? 





12 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. M'ickersham. He can vote. 

The CTtairimax. He can vote. What would you say about the wife? 

Mr. MTckershaim. She can not. 

The Chairman. She has not assumed the residence of the husband 
early enough. But suppose she had been married for two years in 
Alaska. 

Mr. AVickersham. And that was his home in Illinois? 

The Chairman. The home was still in Illinois. 

Mr. AVickersham. That would depend upon the phraseology of the 
election la ay. 

The Chairman. But under the election la ay of Illinois they are 
required to be residents of the State one year and of the county 90 
days and of the precinct 30 days. Do you mean to say to this com¬ 
mittee that the marriage of the wife up in Alaska Iayo years before 
would hare made her under the election hiAY a resident of Illinois 
for one year, a resident of the county for 90 days, and a resident of 
the precinct for 30 days; that she could Yote under the hiAY? 

Mr. MbcKERSHAM. No; I do not think that is the la ay. 

Mr. O’Connor. According to his contention she does not acquire 
rights in the State of Illinois, but has lost them in Alaska. 

The Chair:man. Then she by her marriage loses her Amte in Alaska 
but does not gain a AX)te in Illinois, unless she complies with the 
election laws of Illinois. 

j\Ir. M^ickersham. That is my contention. That is for you gentle¬ 
men to decide. ATe have only one instance of that kind in this record 
and it is not material a great deal AYith this roAV in Alaska. 

Mr. Elliott. Is not a man’s residence largely a matter of his in¬ 
tention ? 

Mr. AATckersham. Absolutely. 

Mr. Elliott. AA'hy Avould not it apply to the AYoman? 

Mr. AVickersham. The same rule applies to the woman that applies 
to the man. 

Mr. O’Connor. You are going to proAe the domicile of the Avife 
is the domicile of the husband? 

The Chairman. As a legal proposition, I think you are right on 
that; but AYhen you come to the election hiAvs I AYant to iiiYestigate 
your proposition a little further. 

Mr. AAbcKERSHAM. I hare said to you Yery frankly that I hare 
not a single decision that in any AYay sustains me on that, so far as 
the election Hays are concerned, and that there is only one instance 
of it in the records, and I do not care AYliat you do about it. But 
my judgment is that the family has one residence and one only, and 
that is where the husband maintains his home, and I do not care 
AYhat you do about it. 

i\Ir. Chindblojm. The only fault I can see in your argument is 
Avhere it is claimed that the husband, the man ayIio liiai-ries the AYidoAY, 
can not change his oayii domicile by aa anting to make his domicile 
wliere his AYife s domicile is. Suppose that he had household goods 
in Chicago. He had a residence there; he moYed eYerything he has 
up to Alaska and moYed in AYith the AYoman ayIioiii he married there, 
and from that time on her home became his home. You say he could 
not change his domicile because he is a soldier? 

Mr. AATckersham. There are decisions to that effect. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 13 

^ Mr. Chindblom. The decisions may be general to that effect, but 
would they go to that extent upon that statement of facts? 

Mr. Wi(’KERsnA:Nr. I think there might be a case presented where 
a soldier would gain a residence while he is a soldier. 

^Ir. CiiiNDBLOM. As a general proposition, a soldier does not 
acquire a residence by moving his whereabout on account of his serv¬ 
ice. That is true; but he might change the domicile if it is his inten¬ 
tion, proven bv circumstances and facts, to do it. 

Mr. IViCKERSHAisr. We have had two or three of these soldiers in 
Alaska who Inne undertaken to assume that position, hut just the 
moment they got to the point where they were discharged they were 
sent out of Alaska to be discharged, and they and their wives left 
Alaska and never came back; not a single one of them has remained 
in the Territory. They have all gone away, everyone of them. That 
is a mere subterfuge for the purpose of trying to sustain the validity 
of their vote, because these people gather around these Army posts; 
they come and go with the Army, and the women with theni. They 
do not have any home there. Wherever their home is it is not at 
that post, because that is a mere temporary location for them. T 
am going to argue that when I come to it along in my brief. 

Mr. Elliott. There is only one case of that kind iii the brief ? 

Mr. WiCKERSHAM. Of course, there are two or three others that 
have made a pretense of that kind, but this case is where a woman 
named Tyer and her husband claimed the same thing here; yet the 
record shows beyond any dispute and the testimony taken at Valdez 
of the Tyers shows that they were ordered to proceed to the States 
for discharge; they signed their affidavits at Valdez, Alaska; they 
went home to Missouri, and the wife went along. Yet they say they 
were Alaska voters. They were not Alaska voters in any sense of 
the word, and the record shows that. 

Mr. O’Connor. Is there any act of Congress with respect to the 
political rights of soldiers and whether they could exercise these 
rights; and if so, under what circumstances and conditions ? 

Mr. WiCKERSHAM. No. 

Mr. O’Connor. In Texas they could not vote, either ? 

Mr. WiCKERSHAM. In Texas they could not vote, either? 

Mr. Hudspeth. A soldier could not vote in Texas if he is in the 
military service of the United States, nor sailors, nor marines, idiots, 
insane, and persons under 21 years of age. 

Mr. O’Connor. Under what theory do you classify them with 
idiots and insane ? 

Mr. Hudspeth. On the clause that they are in the Government 
service. That theory has been in our constitution in Texas since 
1845. 

Mr. WiCKERSHAM. At the election of November 5,1918, there were 
three candidates—myself, Mr. Sulzer, and Mr. Connolly, who re¬ 
ceived 329 votes—he was a Socialist—while I am credited on the 
face of the returns with 4,454 and Mr. Sulzer 4,487, a plurality for 
Mr. Sulzer of 33 votes. 

But the very frauds for which the Democratic House of Kepre- 
sentatives and the Democratic Committee on Elections No. 1 un^ 
seated Mr. Sulzer in 1916 were repeated in 1918. His apparent 
plurality of 33 votes in 1918 was made up by the votes of the same 




14 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

nonresident soldiers in the Regular Army stationed in far-away and^ 
peaceful Alaska, which the House had cast out of the 1916 returns* 
as ille,gal. 

Mr. O’Connor. The 1916 returns showed you had 33 majority and 
the 1918 returns showed he had 33 majority. 

Mr. WiCKERSHAM. Yes. 

Mr. Eliott. That is before they threw out some of the precincts ? 

Mr. WiCKERSHAM. I did not go int the court to try to get any of 
the precincts thrown out. 

]\lr. Elliott. The election returns showed you had a majority of 
31 in the first election, but they threw out some precincts which gave 
him 19. 

Mr. O’Connor. You said you did not go into the courts in 1918 
to have some of them thrown out. Why did you not ? 

Mr. WiCKERSHAM. Because I came to the court which has author¬ 
ity and the duty to decide these questions which no other court in the 
land has. 

Mr. O’Connor. In 1916? 

Mr. WiCKERSHAM. They had no jurisdiction at all; it was a rough- 
house proposition. 

Mr. O’Connor. Did you contest their right to throw them out? 

Mr. WiCKERSHAM. No ; 1 was not even made a party to that suit or 
given any notice of it. 

Mr. O’Connor. It was a mandamus proceeding against the elec¬ 
tion board? 

Mr. WiCKERSHAM. No; I knew nothing about that until after¬ 
wards. 

]\Ir. Elliott. You just rested on your right to contest before Con¬ 
gress ? 

Mr. WiCKERSHAM. Yes. I made no effort to go to court, because I 
knew that no court has jurisdiction to try an election contest, which 
must come to Congress. The only power the court has in Alaska or 
elsewhere is to issue mandamus to compel the canvassing board or the 
proper officials to proceed to do their duty up to the jioint where they 
should make a finding. The court can compel them to march for¬ 
ward to do their duty. But the court can not control them in the 
practice of their duties, nor can it show them what they" shall do; 
but it can compel them to go ahead and do it. Then the only relief 
for either side is to go before the House of Representatives. 

Mr. O’Connor. The only thing the canvassing board had to do in 
1916 or 1918 was to canvass the returns and publish them? 

Mr. Wicio:rsham. There is some of that in this record for 1916. 

Mr. O’Connor. That is your legal proposition that the canvassing 
board can not investigate, but shoidd promulgate the returns. I 
thought you held that it is a purely ministerial act; that they can not 
be mandamused to do anything other than that? 

Mr. WiCKERSHAM. The courts have no jurisdiction. 

Mr. O’Connor. They can not throw out, subtract, or add to the 
vote. 

Mr. ATickersham. The court has no outhority to do anything of 
that kind, although the court in Alaska did do just exactly that; but 
the committee here paid no attention to it. 

Mr. Elliott. A contested-election case is one in which Congress has 
sole jurisdiction and final judgment. 




WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 15 

Mr. O'Connor. But they did do it in 1916, according to his state¬ 
ment. 

Mr. Eijuott. The committee paid no attention to it. 

Mr. Chindblom. While Congress is the sole judge of the eligibility 
and qualification and the election of its own Members, you would not 
go so far as to say that local authorities have no right to administer 
their own laws with respect to conducting an election ? 

Mr. WicKERSHAM. Oil, yes; there is no question about that. 

Mr. CniNDiimM. Even if the election involved action by Congress? 

Mr. WicKERSHAAi. Yes. 

Mr. CniNDBLOM. And everything they do is subject to the superior 
authority of Congress to determine ? 

Mr. WicKERSHAM. No; I go further. The courts in the States have 
no jurisdiction whatever over these matters and things connected with 
a contested-election case in Congress. 

Mr. Chindbloim. After it becomes a contested-election case? 

Mr. WicKERSHAM. At any time, except to see that the election offi¬ 
cers performed their duties legally and in proper order and go ahead 
to the finish of their duties. 

Mr. Chindblom. That is the only authority that any courts have 
ever undertaken, to see that the election officials performed their 
duties properly. 

Mr. WicKERSHAM. The court has no authority to throw" out a 
precinct and declare a man elected. 

Mr. Chindblom. That w^as done in 1916 by mandamus proceedings? 

Mr. WicKERSHAM. Yes. Here is what the court did, on page 4 
of my brief. This is the judgment, directed to the canvassing board : 

Therefore, this is to eooimand you and each of you, that upon receipt of this 
writ of mandamus you do forthwith convene as a canvassing board for the 
Territory of Alaska, and that you reject the vote from said precincts of Ghog- 
giung, Deering, Nushagak, Utica, Bonnifield, and Vault, and that you issue a 
certificate of election to Charles A. Sulzer as having received the greatest 
number of votes for Delegate to Congress from Alaska, and that said certificate 
be in the usual form as by law provided. * * * 

This is signed by the judge. 

Mr. O’Connor. That is from the petition of Sulzer ? 

Mr. WicKERSHAM. That w"as the decision of the judge. That was 
the mandamus, the order to the canvassing board to give him the 
certificate wdthout any notice to me at all. 

Now", w"e have a third contest. My first contest in the 1918 election 
is with Mr. Sulzer. On April 15,1919, Mr. Sulzer died. The election 
w"as held November 5, 1918. Mr. Sulzer died on April 15, 1919. The 
certificate of election had not been issued. The returns w"ere not 
all in. The territor}^ is large and the returns had not been compiled 
and a certificate issued. He died on April 15, and a certificate w^as 
issued to him April 17, twm days after his death. Then, of course, 
under the statute I had to bring my suit of contest within 30 days 
under the United States statute. The man w^as dead. I had prepared 
my notice of contest and all that kind of thing, and had left it at 
Ketchikan w"ith an attorney at Ketchikan to be served upon Mr. 
Sulzer as soon as Mr. Sulzer should come over to Ketchikan and it 
should appear that the certificate had issued. On his w"ay to Ketchi¬ 
kan the poor fellow^ died and there I w^as, the certificate w^as issued 
to him and the party was dead. 






16 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

I had to file my notice of contest within 30 days after the issu¬ 
ance of the certificate. I di dthat. I took this same notice of con¬ 
test, which I had ready to serve upon Mr. Sulzer, recast the first 
three or four pages of it to fit the situation and make allegation that 
he was dead. I sent it on to Washington City and filed it with 
the Clerk of the House. It was dated May 31, 1919, and it was 
published here as House Document 74, Sixty-sixth Congress, first 
session. It was received in the office of the Clerk; the Clerk wrote 
a letter and sent it to the Speaker of the House of Eepresentatives. 
Congress ordered it to be printed; it was printed as House Document 
74. That is the foundation upon which the suit now pending was 
based. I had to go to work to get testimony because the statute 
limits the time in which you can take testimony to 90 days. It re¬ 
quires notice to be served upon the opposite party and proceeds to 
state how service should be made. I had to proceed ex parte. 
There was no contestee alive. I did proceed ex parte, and I did take 
my testimony substantially as it is now contained in this big record 
as ex parte. That was sent on to the Clerk of the House and ordered 
printed, and it was printed. 

But, in the meantime, Mr. Grigsby prepared a bill, and had the 
legislature pass it, calling a special election, and a special election 
was held in Alaska on June 3, 1919, Mr. Sulzer having died on A^^ril 
15. The special election was held on June 3. I declined to be a can¬ 
didate. I felt that I had been elected in November. 

Mr. O’Connor. That is the authority to call a special election—^the 
legislature ? 

Mr. WiCKERSHAM. Yes. I felt that I had been properly elected 
in November, preceding. 

Mr. Hudspeth. When was that act passed. Judge? 

]\[r. WiCKERSHAM. That act was passed on- 

Mr. Chindblom. It was approved April 28, 1919? 

Mr. Hays. It was passed after the election under which you 
claimed title ? 

iVIr. WiCKERSHAM. Yes, sir. 

Mr. O'Connor. And after the death of Mr. Sulzer? 

Mr. WiCKERSHAM. Yes. Mr. Sulzer died April 15, and this act was 
passed April 28, and the election was held on June 3. Now, at that 
election, Mr. Grigsby was a candidate, and a man by the name of 
Jones, a union labor man, was a candidate. We do not know what 
happened at that election. There is no proof in the record as to who 
was elected. 

Mr. O’Connor. What did the returns show ? 

Mr. WiCKERSHAM. There is no return in the record anywhere as 
to that election. There is not a scintilla of evidence anywhere in 
this record. 

Mr. O’Connor. The board canvassed Mr. Grigsby’s election re¬ 
turns ? 

Mr. WiCKERSHAM. Mr. Grigsby appeared here with a certificate of 
election, and he was seated on that certificate of election. 

Mr. O’Connor. Issued by the board there? 

Mr. WiCKERSHAM. Yes; issued by the canvassing board. Now, 
when we get to that I want to show that that certificate was issued 
only 14 days after the election. It was issued when only 33 precincts 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 17 

had reported. Four-fifths of the precincts had not reported to the 
canvassing board, when again, by force and arms, they issued a 
certificate and he was seated. 

Mr. O’Connor. Would you have any rights in that situation at all? 
I mean as a contestant here, not as a citizen, or would it not rather be 
J ones ? 

Mr. Wtckersham. Xo. If Mr. Sulzer was elected on November 5, 
1918, then I was not elected at any time. 

Mr. O’Connor. Then Jones would have a right to bring it? 

Mr. WiCKERSHAM. No; any citizen would have that right. 

Mr. O’Connor. To bring it here? 

Mr. WiCKERSHAM. Yes. 

Mr. O’Connor. As against Grigsby? 

Mr. WiCKERSHA]\r. As against Grigsby. 

Mr. O’Connor. And in behalf of Jones? 

Mr. WiCKERSHAM. Oh, no. Any citizen has a right to present a 
contested election case to show that a man was not legally elected. 

Mr. O’Connor. Even though elones, the candidate, does not become 
a party to the issue ? 

Mr. WiCKERSHAM. That is not involved in this case, and I would 
not like to commit myself to something that is not involved. 

Mr. O’Connor. In other words, I wanted to see whether or not 
the Jones-Grigsby election was relevant at all to the issue made by 
you. Of course, if you were elected in 1918 that settles the Grigsby 
case, but if you were not elected in 1918, I fail to see what interest 
you had in the special election. 

Mr. WiCKERSHAM. Exccpt as a citizen. 

Mr. O’Connor. I do not see how it could seat you. 

Mr. WiCKERSHAM. It would not seat me. 

Mr. Chindblom. But he might claim that nobody was elected. 

Mr. Elliott. You are not contesting Mr. Grigsby’s election upon 
the ground that there were not enough votes to elect him, but that the 
election was illegal, and the law under which the election was held 
was illegal? 

Mr. WiCKERSHAM. Yes, sir. 

Mr. Hays. And that any election at that time was unauthorized? 

Mr. AVickersham. Unauthorized and void. My theory is that the 
whole election on June 3 was unauthorized and void and that the 
certificate is void because it is in violation of the United States 
statute. 

Mr. O’Connor. But if you were elected over Sulzer, I do not see 
what that has to do with the case. 

Mr. AYickersham. No. 

Mr. O’Connor. If you were not elected over Sulzer, it looks to me 
that Jones ought to be the contestant. 

Mr. Elliott’. It has this much to do with it. The contestant here 
claims that an illegal-election law Avas passed in Alaska, and if that 
was so. Congress might as well decide it now as hereafter. I think 
that is all there is to it. 

Mr. WiCKERSHAM. Yes, sir. Those same questions are involved all 
the Avay through in this case. The question in this case is going to turn 
very largely on Avhether or not the Legislature in the Territory of 
Alaska has^ any power to change the election laws passed by Con- 

181744—20-2 





18 WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

gress for the election of a Delegate from Alaska. My contention is 
that the Territorial legislature is barred by the act of Congress from 
amending that law in any respect or changing it, and this act under 
which Mr. Grigsby claims to have been elected on June 3 is in violation 
of the law in almost every State. 

Mr. Hays. But after all, so far as this particular contest is con¬ 
cerned, that is merely an academic question. 

Mr. IVicKERsiiAM. No; only so far as my right is concerned- 

Mr. Hays (interposing). That is what I mean, so far as your per¬ 
sonal right to this contest is concerned. 

Mr. WiCKERSiiAM. So far as my right to a seat is concerned ? 

Mr. Hays. So far as your personal right to this contest is concerned, 
the matter of that election law is purely an academic question. 

Mr. IViCKERSHAM. Yes; but so far as my right as a citizen of Alaska 
is concerned, it is not an academic question. Now, Mr. Chairman, 
do you want to continue? 

Mr. Eletoiy. It is past 12 o'clock. 

Mr. O’Connor. I make a motion that we recess until- 

The Chairman (interposing). We might take a recess here. 

Mr. Wickersham. I have only a few more statements to make, and 
if you will give me a few- minutes I can conclude now. 

The Chairman. Well, proceed. 

Mr. Wickersham. Now, when I came here- 

Mr. O’Connor (interposing). Judge, I did not suggest that we 
recess with any motive—I want to hear Col. lYickersham through 
and through, and if I ask any questions it is not evidence of any politi- 
cay hostility as a member of this committee, but simply to get in¬ 
formation. I can not repeat too often with my tongue what sounds 
well to my ear. I only learn by propounding questions and getting 
answers to them. I suppose I am entirely human in that respect. 

Mr. IYickersham. Now, Mr. Chairman, Mr. Sulzer’s death on 
April 15, and the issuance of the certificate of election to him on the 
iTth of April, put me as a contestant in this sort of attitude. Under 
the statute I had to file my notice of contest within 30 days, and 
under the statute I had within 90 days thereof to get my testimony, 
or I would be out, and I did it. I filed my notice here, and it was 
printed as House Document No. Y4, in this Congress. I went out and 
took my testimony the best I could and brought it here and it was 
printed. Your honor looked me in the eye, upon Mr. Grigsby’s objec¬ 
tion to that situation, and said, “ Mr. Wickersham, it seems to me that 
the general rule is that you will have to go back and take this testi¬ 
mony all over again upon notice,” and you compelled me to go back 
to Alaska, to go out and hunt up all these witnesses again, and bring 
them in before the notary public and take their depositions all over 
again. I had it to do. I saw that there were difficulties of that kind 
involved that might give me a great deal of trouble. Mr. Vestal of 
Indiana offered a resolution to put this case in some better shape. 
That was House Resolution 105, which was before this committee and 
will be found printed on pages 6 and Y of the brief. 

I want to call your attention to two or three features of it. The 
second paragraph in that resolution provides that contestant Wick¬ 
ersham shall have the first 40 days thereof in which to take his 
testimony—^because under the statutes my time had all expired— 
which shall be taken in the manner provided by the present statute 




WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


19 


governing the taking of testimony in contested-election cases, by 
notice served on George Grigsby. Now, under the usual rule I had 
to make that service on Mr. Sulzer, but this resolution passed by 
this committee and reported to the House required me to give that 
notice to Mv. Grigsby and permitted me, upon doing that, to go back 
and take all this testimony over again, and we did it. I went back 
to Alaska immediately after the passage of this. resolution and 
started in to take my testimony. I had 40 days in Avhich to do it, 
and I ought to have had GO days. Mr. Giagsby had the next 40 days 
in which to take his testimony, and I had 10 days then in which 
to take rebuttal testimony. We went through all that, and the 
testimony is here now foi* the second time. It has taken us from 
the date of this resolution, July 28, up to this minute to get back 
to the point where I was when I stood before this committee last 
June. For eight months I haAe been out now getting this evidence 
and getting it before the committee, and I am back just where I was 
then, with the same testimony, the same witnesses, substantially all 
the way through, excejit that it has been taken upon notice and cross- 
examdnation. It had not been before that. 

Xow, I only want to call your attention to one or two other things 
in this resolution. Paragraph 5 of that resolution provides that the 
governor of Alaska and the custodian of the election returns and 
attached ballots of the election of November 5, 1918, l)e required to 
forward by registered mail to the Clerk of the House of Repre¬ 
sentatives all the election returns and pa]:)ers and l)allots of that 
election for the inspection and consideration as evidence by the 
House. Xow, all those papers are here. The governor complied with 
that resolution and has forwarded to the House all the |)apers; and 
those returns, ballots and everything are now before this committee, 
and they are all made evidence by this resolution. 

The Chair:man. I want to say in that connection, Mr. Wickersham, 
that the clerk has advised me that these papers are at his office, but 
I have not called them to the committee's attention yet but was 
awaiting this hearing before getting that testimony before the com¬ 
mittee. 

Mr. Wickersha:m. Oh, yes: I knew that; but I am only pointing 
out some of die facts to show these documents are all here and they 
are evidence. Xow, in the ninth paragraph of this resolution is a 
matter of very great importance to me, and it is a matter that you 
will hear a good deal about probably from both sides. Paragraph 9 
provides that the Secretary of AVar be, and he is hereby, requested 
to order by telegraph immediately iq^on the passage of this resolu¬ 
tion that the 40 soldiers named, and whose Army status is described 
in the certified list dated June 11, 1919, signed by the M"ar Depart¬ 
ment officials, and which list is attached to the application of con¬ 
testant for the passage of this resolution, be asseml)led at the office 
of the commanding officer of the United States military cable and 
telegraph in the towns of Ahddez, Sitka, and Fairbanks, Alaska, 
within the 40 days’ j^eriod for taking testimony by the contestant, 
then to be examined under oath by contestant or his attorney or 
agent, touching the matters and things alleged in the notice and 
statement of contest on file in this House and in this cause. Xow, 
I propose to show you that that was never done. It was not done im¬ 
mediately, and it was not until after the thirty-third day of my 40 






20 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


days that any attention was paid to iny eftorts to get that done. For 
33 days- 

Mr. O'Connor (interposing). Was the Secretary of War apprised 
of the adoption of this resolution ? 

Mr. WiCKERSHAM. I suppose so. I applied to the various officials 
having charge of those men out in Alaska, and these facts were tele¬ 
graphed to the department. 

Mr. Hcdspeth. Did you ever wire the Secretary of War yourself? 

Mr. AVickersham. No, sir. I applied to Col. Lenoir, commanding 
officer, who has entire charge of tJie whole matter in Alaska. 

The Chairman. Now, just one question with reference to that. As 
you have suggested that this will be heard of frequently, I would 
like to know now^, assuming that the Secretary of War or the AVar 
Department did nothing in compliance with the request of Congress, 
what has this committee anyway to do with that, and what can we do 
wdth that feature? 

Mr. AATckersham. AVell, you can consider it when you consider 
the efforts that I have made to get the testimony of these soldiers. 

The Chairman. But it is not a question of effort, it is the testi¬ 
mony before the committee. 

Mr. AATckersham. That is true. 

^Ir. Chindblom. Did you get the testimony of these soldiers? 

Mr. AATckersham. Oh, yes; everyone that we could find Ave 
either go on the Avitness stand or got him up to a point Avhere he 
had an opportunity to testify and refused. 

Mr. Chindblom. Did you get them all, and Avas this resolution 
substantially complied Avith? 

Mr. AATckersham. It Avas not. 

Mr. Hays. How many of these 40 soldiers did you get? 

Mr. AA^ickersham. I haA^e a list of them. I Avill present it at the 
next meeting. 

^Ir. Hays. The testimony of hoAv many Avas obtained in this 
record ? 

Mr. AA^ickersham. About 30. 

Mr. Hays. So that any noncompliance by the Secretary of AA^ar 
Avith this request deprAed you of perhaps not to exceed 10? 

Mr. AA^ickersham. It deprived me of a good deal more than that, 
because if the Secretary of AA^ar had complied Avith that request im¬ 
mediately and had brought those men up, I Avould have had some 
opportunity, if they had refused, to haA^e gone into court or gone 
somewhere to get them to testify. 

The Chairman. But, Judge, hoAv can this committee consider that? 

Mr. AVickersham. That is for you to consider after the evidence 
is all before you. 

The Chairman. I understand that, but Ave Avant to get at the 
laAv and the facts in this case. Hoav can this committee, in determin¬ 
ing this question upon the facts and the laAv presented here, deter¬ 
mine a question that is not before us? EA^en if the Secretary of 
lA^ar has failed to do his duty, Avhat jurisdiction has this committee 
OA^er that? 

Mr. AA^ickersham. Oh, you hafe not any jurisdiction OA^er him. 

The Chairman. AAAll, OA^er the question inAmlved? 

Mr. AATckersham. You haA^e this to consider, that I made every 
effort that it Avas possible for me to make, through the Secretary 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 21 

of AVar, through this resolution, through appeals to the soldiers, 
through issuing subpoenas to them to compel them to come in, 
throiurh every way that I could- 

Mr. O’C 'oNNOR (interposing). Mr. Chairman, I think Judge Wick- 
ersham is absolutely correct on that, if he was prevented by the 
Secretary of AYar- 

The Chairman (interposing). But suppose the Secretary of War 
prevented your getting the testimony by his action and the testimony 
is not before us- 

Mr. WiCKERSHAM (interposing). But the testimony is here. 

The Chairman (continuing). How can Ave consider it? 

Mr. IYickersham. The testimony is here. 

Mr. O'Connor. AVe’ought to find out whether the Secretary of 
AYar hampered them or whether the charge made by Judge AA^icker- 
sham has any foundation in fact. 

Mr. Hudspeth. AYhat bearing has that on the illegal votes claimed 
to be cast in that election ? 

The Chairman. That is what I am wondering. 

Mr. Hudspeth. Possibly Mr. Grigsby will make a statement about 
it; but what bearing will that have upon your statement that there 
were illegal votes cast? AA^e have got to decide this case on the 
testimony. 

Mr. O’Connor. On the soldier vote. 

Mr. Hudspeth. No. If the Secretary of AA^ar is guilty of laches, 
that is entirely irrelevant and immaterial. 

The Chairman. How can we go into that question? 

Mr. Hudspeth. The judge says it is a question of Avhat effort he 
made. 

Mr. Hays. I think it is like the sheriff in a circuit court in a crim¬ 
inal case. If the sheriff does not do his duty in serving the sub¬ 
poenas and getting the witnesses before the court, that fact is not a 
matter for the jury. 

Mr. Hudspeth. It is a matter for the court in granting a continu¬ 
ance of the case. Now, if the judge Avanted a continuance on that 
ground- 

Mr. AYickersham (interposing). I am not asking for anything 
like that. I think we have plenty of testimony without it. 

The Chairman. To my mind it seems immaterial. 

Mr. AATckersham. All right. 

Air. AATckersham. It is going to be someAvhat important in this 
aspect of the case, that every effort was made by Air. Grigsby and 
his attorneys and agents in Alaska to keep these soldiers from testify¬ 
ing. They were instructed by his attorneys and agents that they 
did not have to testify unless they Avanted to, as to who they voted 
for, and eA^ery obstacle Avas laid in the way by the AYar Department 
and by the contestee’s attorneys and agents to prevent that testimony. 

Air. O’Connor. I think the Secretary of AA’'ar is entitled to make 
his AueAv knoAvn to this committee in vieAv of tlnit charge. 

The Chairman. That is not a question material to this case. 

Air. O’Connor. AA^ell, he said it Avould be heard from on the floor 
of the House. 

Air. AATckersham. No; I did not say it would be heard on the floor 
of the House. 











22 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. Hudspeth. Then we would be trying Mr. Secretary Baker and 
not trying this case. 

Mr. O’Connor. But that is a serious charge, Mr. Hudspeth, and 
we ought to go into it. 

Mr. CniNDBLOM (interposing). As a matter of fact, Mr. Chairman, 
let me ask this question: How maii}^ soldiers that you desired to ap¬ 
pear to testify actually failed to appear by reason of the circum¬ 
stances which you have mentioned ? 

Mr. MTckeksiiam. Oh, very few; very few. 

Mr. CiiiNDBLOM. How many, would you say ? 

Mr. MTckersiiam. Oh, 10 or 15. 

Mr. Chindblom. I think you said you did examine 30 of them or 
give 30 of them a chance to testify, and there Were 40 in all ? 

Mr. WicKERSHAM. Yes; something like 15 or 20 of them refused to 
testify. 

Mr. Chindblom. That is another matter, but of .the 40, 30 were 
actually brought in and given an opportunity to testify? 

Mr. WicKERSHAM. Yes. I may be mistaken as to the exact num¬ 
ber, but substantially that. 

Mr. O’Connor. But your charge is that due to the laches and 
collusion of the Secretary of War you did suffer substantial wrong 
in not being able to get and cross-examine 10 men ? 

Mr. WiCKERSHAiM. You are using words that I did not say at all. 
I did not say laches or anything of that kind. I simply said that no 
notice was given and that those people were not brought up until 
the thirty-third day. That is what I said, and the record shows it. 

Mr. Hudspeth. Before we go any further, Mr. Chairman, in this 
matter relating to what the Secretary of War may have done or may 
have failed to do, let us not forget that paragraph 9 of this resolu¬ 
tion reads that the Secretary of War be, and he is hereby, re¬ 
quested—note that word “ request.” 

Mr. WicKERSHA]M. And he did not do it. 

Mr. Hudspeth. It is a request of Congress; and, in any event, if 
he failed to comply with that request, it would not be laches of duty, 
would it? 

Mr. AVickersham. But I am only suggesting it because it is one of 
the things that prevented me from getting these witnesses and ex¬ 
amining them. 

Mr. Hays. This committee has no right of compulsion in regard to 
Avitnesses. 

The Chairman. No, sir; and the House by resolution did not at¬ 
tempt to compel any one. 

Mr. Hays. No, sir; it Avas a request by Congress. Now, Avhether 
that Avas complied with or not has no bearing on the determination 
of the case on the question of evidence. ^Ye can only consider the 
evidence Avhich Avas actually submitted, and if some officer Avas dere¬ 
lict in his duty it does not involve the merits of the controA^ei'sy in 
anyAvay, and I do not think this contest ought to be made an inquiry 
at this time particularly into the matter of any dereliction of duty 
on the part of the Secretary of AVar or anybody else. 

Mr. Hudspeth. I move that Ave refer that matter to this AVar 
Expenditures Committee. 

Mr. O’Connor. But seriously, do you not think that that is a 
matter Avhich is pertinent to the issue raised here? 




WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 23 


SO. I do not see why we should 


Mr. Hudspeth. I do not think 
determine that question. 

Mr. O’Connor. If you did not think so, why did this committee 
adopt this resolution requiring these soldiers to appear? 

Mr. Hudspeth. That was done by 'the House. 

Mr. Hudspeth. It was not a demand, it was a request that the 
soldiers be furnished for the purpose of taking their evidence, and 
so far as the evidence was taken, we are here to consider it. The 
that was not taken, I take it, we will be unable to consider. 

Mr. WiCKERSHAM. Yes; that is the law. 

The Chairman. Even though you Avere wronged? 

Mr. WiCKERSHAM. Yes; there is no question about that. 

Mr. Hays. The more we discuss this question the further we are 
getting away from this case. 

Mr. Hudspeth. Yes; I think so. 

Mr. Hays. Then let us quit this discussion. 

Mr. O^CoNNOR. Like Banquo’s ghost. It will not down. 

Mr. WiCKERSHAM. Paragraph 10 of this resolution provided that 
the testimony of all witnesses shall be reduced to writing, signed by 
the witness, A^erified, and returned to the Clerk of the House of Rep- 
resentatiA'es for use in these causes in the manner provided in the 
laws of the United States relating to contested elections and modified 
by this resolution. Xoav, there are II depositions presented by Mr. 
Grigsby Avhich have not been signed or verified by the parties to 
them, and I Avant to call that to the attention of the committee riffht 


The Chairaian. Are those the ones not included“in the record? 

Mr. WiCKERSHAAi. I think there are seven or eight in the record 
that are not signed or verified. 

Mr. Grigsby. I will state that all those in the record that I know 
of that are not signed are now in the possession of the clerk, signed 
and A^erified. I sent back to liaA^e those corrections made, and they 
came back too late to be printed. 

The Chairaian. The original is now on file with the clerk, of all 
those that are jirinted in the record ? 

Mr. Grigsby. Yes, sir. Now, there are 8 or 10 from Anchorage that 
are not printed at all that are also in the possession of the clerk, 
signed, verified, and authenticated—I do not know whether properly 
or not, because I liaA-e not seen them; they have not been opened. 

The Chairaian. Were they taken within the time ? 

Mr. Grigsby. They Avere taken within the time. 

The Chairman. There is no question. Judge, that those depositions 
were not taken in the time, under the rule ? 

Mr. WicKERSHAAi. Here is the situation: Notice was given and 
witnesses Avere examined within the time, but their depositions were 
sent on here without being signed and verified, and long after the 
time had expired they were sent back to be signed and verified. This 
is the first time I have known that they were signed and verified. 

The Chairman. You mean that Hie testimony was taken within 
the time ? 

Mr. WiCKERSHAAi. Yes, sir. 

The Chairman. They Avere signed after the time expired? 

Mr. WiCKERSHAM. If they were signed at all. I have never seen 
them. I haA^e not heard that they were signed before. 



24 


WICKEBSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


The Chairman. Do you raise the question that they are not valid 
if they are signed after the time ? 

Mr. WicKERSHAM. I do not raise any question about it. I have not 
seen them. I submit the matter to the committee. 

Mr. Grigsby. I was just notified this morning that they had got 
here. 

The Chairman. I wanted to know, Judge, what is the claim on 
either side with regard to that testimony, because we will send for 
it and have it before the committee at the next meeting, and I wanted 
to know what the claim was. 

Mr. WicKERSHAM. So that the matter may be decided by the com¬ 
mittee, I make the formal objection to them on the ground that they 
were not taken, signed, and verified within the time. I do not make 
much of a fight over it, but I make the formal objection for this 
reason: I do not know anything ’about them; I have never seen them; 
they are not printed in the record; and I have not had an opportunity 
to examine them in making up my brief, except that I was shown the 
papers, and he told me the situation, and I knew that at the time 
he made that claim that they were not signed, but he was going to 
send them back and have them signed. 

Mr. O’Connor. Do either one of you gentlemen intend to file 
supplemental briefs? 

Mr. WicKERSHAM. No; I do not. I am the only one who has a 
right to file a supplemental brief, and I do not intend to. Now, with 
respect to those depositions: I raised that point about that clause 
of the resolution,, and I did it without knowing that those depositions 
were here or that the others were signed. But they are not signed 
in the record. I do not care much about it one way or the other, 
except that I think the committee ought to lay down a correct rule of 
the matter and not compel me to answer evidence that I have never 
seen or do not know anything about, taken long after. the time 
has expired. 

The Chairman. The committee has not seen the evidence either. 
It has not been before the committee. But if it is before the clerk, 
he will have it sent to the committee so that at the next meeting it 
will be before us. 

Mr. WicKERSHAM. I suppose it ought to be printed. I would like 
to have a copy of it. I do not know what it is. 

Mr. Grigsby. I will state, with reference to that which is printed— 
of course, you have seen that ? 

Mr. WicKERSHAM. Yes; I have seen that. 

Mr. Grigsby. That has been corrected and signed since. Now, this 
other testimony relates to a few illegal votes in Anchorage, a precinct 
which Mr. Wickersham carried, but none of the depositions show 
which way the illegal voter cast his vote. I believe I told you that 
before. 

Mr. Wickersham. If you did, I have forgotten it. 

Mr. Grigsby*. It simply shows that this precinct rule was violated 
up there, as elsewhere, and it might have an effect if the vote was pro¬ 
rated. However, it is not a very serious matter. 

The Chairman. How many are there? 

Mr. Grigsby. I think there are eight. 

The Chairman. Of the ones that are not in the record ? 


25 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Mr. Grigsby. Yes, sir. 

^ long deposition, or are they short? 

Mr. Grigsby. They are short. They are so short it would be easy 
^ typewritten copy made for Mr. Wickersham. 

Mr. Chindblom. lYas Mr. Wickersham represented when they 
were taken ? 

Mr. Wickersham. Yes, sir. 

Mr. Grigsby. They came down here, in the first place, addressed 
to the clerk of the Committee on Elections instead of being addressed 

^ AT House, as the law requires. I think they went to 

the No. 2 committee and they were sent over by the clerk. 

The Chairman. I do not know Avhat came here. I know I had 
everyone here refuse to accept anything that came except when 
transferred by the clerk direct. 

Mr. Wickersham. I was notified that those depositions were to be 
taken, and my attorney appeared and cross-examined the witnesses, 
but I was not there and knew nothing about it, although the man who 
appeared for me had the authority, but they are not in the record. 

(Thereupon, at 12.30 o’clock p. m., the committee adjourned until 
Monday, March 29, 1920, at 8 o’clock p. m.) 


Committee on Elections No. *3, 

House of Eepresentatht^s, 

Monday^ March 29, 1920. 

The committee met at 8.15 o’clock p. m., Hon. Cassius C. Dowell 
(chairman) presiding. 

The Chairman. Gentlemen, there is a quorum present, and you 
may proceed with your argument, Mr. lYickersham. 

STATEMENT OF HON. JAMES WICKERSHAM, CONTESTANT. 

Mr. Wickersham. Mr. Chairman, I refer the committee to page 7 
of the brief, and I intend to begin at that point because there begins 
the argument with relation to the law in this case. 

I call the attention of the committee, first, to a full discussion 
there of the power of Congress to enact laws for the control of the 
elections of United States Senators and Representatives of the United 
States, found in United States v. Gradwell (243 U. S., 476.) That, 
of course, has nothing to do with this case, because that relates to 
elections in States, but it is a general outline of the power of Con¬ 
gress over elections of that kind, and I cite it merely for that pur¬ 
pose. 

Alaska is a territory purchased by the Government of the United 
States from Russia in 1867 by a treaty of cession of 1867, and in 
that treaty as in the treaties of Florida and in the purchase of the 
Mexican districts, etc., the rights of the inhabitants who remained in 
the territory after the purchase were fixed. The treaty of 1867 
with Russia provides that all of those inhabitants, Russian citizens, 
who remained in the Territory for three years after the purchase of 
the country shall become citizens of the United States, and specifi¬ 
cally provides that they shall have all the rights, privileges, and 



26 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


immunities of any other citizens of the United States. It is substan¬ 
tially the same form of expression, the same Avords almost identical, 
and the same idea as you Avill find in the treaty for the purchase of 
the Floridas and the Mexican ProAunces of 1848. 

XoAv, I call that to your attention because that aa411 be interesting 
in one other feature of this case later along. 

Alaska, of course, being a Territory, is under the poAver of Con¬ 
gress. We luiAT no State gOA^ernment. We liaA e no elective officers 
except under an act of Congress we elect our legislature, and since 
the creation of the legislature that body has provided for the 
election of the attorney general of tlie Territory. OtherAvise all our 
officials of the Territory are ajipointive. 

j\Ir. Roavax. There is only one elective officer outside of the repre- 
sentatiA^e ? 

Mr. WiCKERSHAM. I think that is all, the attorney general, except 
the legislature; yes. 

Noav, the Supreme Court of the United States in a number of cases 
has determined very fully Avhat poAver the Congress of the United 
States has 0 A''er Territories, and I liaA^e cited, on jiage 8, the leading 
case, Xational Bank v. County of Yankton (101 U. S., 129), and I 
haA’e quoted from that authority from page 133, and I liaA’^e quoted 
it because it gives you a A^ery definite idea of the ])OAver of Congress 
over the Territories. 

Among other things, it is said: 

Tlie organic law of a Territoiw takes tlie place of a constitution as the 
fundamental law of the local government. It is obligatory on and binds the 
territorial authorities; but Congress is supreme, and for the purposes of this 
department of its governmental authority has all the powers of the people of 
the United States, except such as have been expressly or by implication re¬ 
served in the prohibitions of the Constitution. 

XoAv, this case also decides this point: 

Congress may not only abrogate hiAvs of the territorial legislatures but it 
ma.v itself legislate directly for the local government; it may make a void act 
of the legislature valid, and a valid act \’oid. In other words, it has full and 
complete legislative authority OA^er the people of the Territories and all the 
departments of the territorial governments. It may do for the Territories 
what the people, under the Constitution of the United States, may do for the 
States. 

In other Avords, the Congress creates the legislature of the Terri¬ 
tory of Alaska. Congress created the office of Delegate to Congi ess 
and may abolish it at any moment. MY are absolutely governed 
fundamentally by Congress. But Congress in Alaska and all the 
other Territories has created the territorial legislature. But in cre¬ 
ating the territorial legislature it ahvays fixed the limits of the poAver 
of the legislature, and the legislature can not go beyond the poAvers 
given it by the organic act of its creation. That organic act passed 
by Congress is noAv the constitution of Alaska. 

XoAv, in the case of Binns v. United States (194 U. S., 486), a case 
coming from Alaska, these matters are considered in direct relation 
to xVlaska, and substantially the same principle is laid doAvn in that 
case as is laid doAvn in the national-bank case Avhich I haA^e just 
mentioned. 

^Ir. Elliott. Mr. IVickersham, your contention is this, that the 
Territorial legislature of Alaska has only such legislative poAvers as 
are granted it expressly by Congress? 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


27 


Mr. iCKERSiiAM. Yes; that our own court has held, and that has 
always been the rule. Congress has complete control over all offi¬ 
cials in the Territory of Alaska. 

The TTah case isjhe leading case on that question, the case of 
herris Iligley (87 IT. S., 375), which arose in the Territory of 
Utah over a conflict l^etween an act of the legislature and the organic 
act. I want to read that. It is very short. The Supreme Court 
said on tliis point, the italics being mine. [Reading:] 

There remains, then, only tlie further inquiry wliether it is inconsistent with 
any part of the oi’ganic act itself. That act established a complete system of 
local jtovernment. It stand.s as the constitution or fundamental law of the 
Territory. It provides for the executive, legislative, and judicial departments 
of government. It prescribes their functions, their manner of appointment and 
election, theii* compensation, and tenure of office. In regard to the judiciary, 
it creates the courts, distributes the judicial power among them, and provides 
all the general machinery of courts, such as clerks, marshal, prosecuting attor¬ 
ney, etc. It is here, then, if anywhere, that we should look for anything in¬ 
consistent with the power conferred on the probate courts by the Territorial 
legislature. * * * 77 ^^ Territorial leyislature conferriny general 

jurisdiction in chancery and at law or the iwohate court is, therefore, void. 

The two acts, the Territorial act and the act of Congress, con¬ 
flicted, and for that reason the Territorial act was void. 

Then, again, in the case of Clayton v. Utah Territory (132 U. S., 
032) the Supreme Court again considered the rule in the Ferris case 
jind said. [Reading:] 

Under the organic act of that Territory the power to appoint an auditor of 
public accounts is vested exclusively in the governor and council; so much of 
the acts of the legislature of Utah of .Tanuary 20, 1852, and February 22, 1878, 
as relates to the mode of appointing an auditor of public accounts is in conflict 
with the organic act, and is invalid. 

In the leading case from the Alaskan courts touching the legisla¬ 
tive powers of Congress and the Territorial legislature, the court 
held that while Congress had plenary legislative power in Alaska 
and could legislate therein on all rightful subjects of legislation not 
prohibited by the National Constitution, necessarily the other more 
limited rule applied to the power of the local legislature. The court 
said: 

Having this power. Congress certainly had the power to confer it upon the 
legislature. It is true that the powers of that legislature are limited by the 
act defining those ])owers, and that in this respect a Territorial legislature dif¬ 
fers from State legislatures; that is to say, the oi'ganic act of a Territory is a 
" grant of specific powers and not a reservation of speciflc powers. 

This was decided by Judge Jennings in the Fifth Alaska Report, 
325. 

The court then pointed out that if the organic act created the 
Alaska Legislature, Congress withheld a wide range of legislative 
powers from that iDody in the granting clause, which begins with 
these words: 

The legislative power of the Territory shall extend to all subjects of legis¬ 
lation not inconsistent with the Constitution and laws of the United States, 
but no law shall be passed, etc. 

So that it follows with respect to the organic act passed by the 
Congress for the creation of a government in Alaska and creating the 
Territorial legislature, that that legislature has no authority except 
that authority which is expressly given to it, and it also follows that 


28 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

it has no authority to pass such a law which shall be in violation of 
the Constitution of the United States or the laws of the United 
States. Congress may to-morrow abolish the Legislature of Alaska 
and take away all of its powers. It may take away its powers, it may 
modify them, expand them, or limit them. Congress is supreme in 
the matter of passing legislation for the Territory of Alaska. I 
call your special attention to that particular clause in the organic 
act of 1912 giving legislative power to the Territory of Alaska, and 
that it provides “ that the legislative power shall extend to all right¬ 
ful subjects of legislation not inconsistent wdth the Constitution and 
laws of the United States.” 

It follows that the Legislature of Alaska can not enact any legis¬ 
lation Avhich is “ inconsistent wdth the Constitution and laws of the 
United States ”—that is, inconsistent with the organic act of Alaska. 
That is our constitution. Our constitution is merely a law of the 
United States passed by Congress creating our legislature and giving 
it certain limited authority. 

Aow, Congress passes election laAvs, of course, for all the Terri¬ 
tories. There is no constitutional provision that Alaska shall haA^e a 
representatiA^e in Congress. A Delegate is not a constitutional officer. 
Only Representatives and Senators are constitutional legislative offi¬ 
cers. A Delegate from the Territory is created by an act of Congress. 
We did not liaA^e a Delegate in Alaska from 1884 until 1906. For all 
those years Alaska was a Territory, an organized Territory, but had 
no Delegate in Congress, and not until Congress itself passed the act 
of 1906 did Ave haA^e any Delegate from the Territory of Alaska, and 
not until 1912 did we have a Territorial legislature. From 1884, Avhen 
our goA^ernment Avas first created by an act of Congress, Ave had no 
legislatiA^e body, no law-making body in Alaska until 1912. 

Noav, a A^ery interesting case arose in Utah with respect to the 
power of Congress over these Territorial officials, over the right to 
the people in a Territory to Amte, and oA^er the power of Congress to 
control both the elective branches in the Territory and the election 
of officers, and I haye quoted here some part of it and I want to read 
it to this committee so that you Avill get the view that I want kept in 
mind all the time, that Alaska is a Territory, and that we are greatly 
limited in our form of legislative goA^ernment, and that you, the 
Congress, is the supreme legislatiA^e body for Alaska. 

Mr. Roaawn. Is there any dispute on that point? 

Mr. WiCKERSHAM. No; but I want to make it clear, because the 
case A^ery largely rests on that. 

Mr. Hudspeth. Do I understand you that Congress passed a spe¬ 
cific act granting the right of the Territory of Alaska to have a legis¬ 
lature ? 

Mr. WiCKERSHAM. Yes. 

Mr. Hudspeth. And it also passed another specific act granting 
a Delegate in Congress? 

Mu WiCKERSHAM. Yes; and passed a specific act giving the classi¬ 
fication of voters, and that of course is going to be the point in this 
case A^ery largely. 

Mr. Elliott. And it also passed an election law? 

Mr. WiCKERSHAM. It also passed an election law. 

Mr. Elliott. And, as I understand, your contention is here, as part 
of your case, that this legislature was called in special session and 


29 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


enacted a law to govern the election of Delegates to fill vacancies, 
and that that law you claim is illegal ? 

Mr. WiCKERSHAM. Illegal, unconstitutional, and void. 

Mr. Dlliott. Because it had no power to pass it? 

Mr. MhcKERSHAM. les. I want to call attention to the case of 
Mur])h.y v. Bamsay (114 U. S., 15). 

Mr. Bowan. Wliat page? 

iVIr. M ICKERSHAM. Page 10. In that case it is said. [Beading:] 


llie counsel for (he appellants in ar^-uinent questioned 
power of Con^-i-ess to pass the act of March 22, 1882, so far 
rights of the electors in the Territoi-y under previous laws. 


the constitutional 
as it abridges the 


Previously they had a very much wider range of election rights 
than they had had before this law of Congress. [Beading:] ^ 

It has passed beyond the stage of controversy into final pidginent. The people 
ot the United States, as sovereign owners of the National Territories, have 
supreme power over them and their inhabitants. In the exercise of this 
so^ereign dominion they are represented by the Government of the United 
States, to whom all the powers of government over that subject have been dele¬ 
gated, subject only to such restrictions as are expi'essed in the Constitution, or 
are necessarily implied in its terms, or in the [luriioses and objects of the (lower 
itself, for it may well be admitted in respect to this, as to every jiower of society 
over its members, that it is not absolute and unlimited. But in ordaining 
government for the Territories, and the people who inhabit them, all the discre¬ 
tion which belongs to legislative power is vested in Congress; and that extends, 
beyond all controversy, to determining by law, from time to time, the form of 
the local goveriunent in a particular Teri'itory and the qualification of those 
who slndl administer it. It rests with Congress to say whether, in a given case, 
any of the people, resident in the Territory, shall participate in the election of 
its officers or the making of its laws; and it may therefore take from them any 
right of suffrage it ma.v previously have conferi'ed, or at any time modify or 
abridge it, as it may deem expedient. *The right of local self-government is 
known to our system as a constitutional franchise, belongs, under the Consti¬ 
tution, to the States and to the people thereof, by whom that Constitution was 
ordained, and to whom by its terms all power not conferred by it ui)on the 
Government of the United States was expressly reserved. The personal and 
civil rights of the iidiabitants of the Territories are secured to them, as to other 
citizens, by the principles of constitutional liberty which i-estrain all the agencies 
of government. State and National ; their iM)litical rights are franchises which 
they hold as privileges in the legislative discretion of the Congress of the United 
States. 


That is a point that I want to get clear to this committee. This 
doctrine was fully and forcibly declared in the case of National 
Bank v. County of Yankton (101 U. S., 129), to Avhich I called your 
attention, and then the court gives attention to other cases along 
the same line. 

Now, in addition to that case, they had in Utah an organic act 
Avliich provided for the election of the Territorial officers and Con¬ 
gress Avas not satisfied Avith the officers. Something got the matter 
out in Utah—it Avas Mormonism, of course—and Congress passed 
another laAv repealing that organic act of Utah Territory, and pro- 
Auding for a full election of all the Territorial officials, but Avith cer¬ 
tain provisions against the voting of Mormons and others, and 
there Avas a question Avhich Avas presented to the Supreme Court of 
the United States in this case, and the Supreme Court held in the 
case that Congress had full authority to legislate in that matter. 
So it is in Alaska. Our franchise up there Ave hold as privileges 
giATii to us by the specific act of Congress. Congress may take them 
away from us, (Congress may place any limitation it pleases upon 


30 


WICKEKSHAM VS. SUiLZER (DECEASED) AND GRIGSBY. 


them, and we are bound by them, and our legislature has no authority 
at any time to pass any law in opposition to the organic act creating 
the Territory and limiting our franchises. 

Noav, Congress, as I say to you, passed two election laws for 
Alaska. The first Avas the act of May, 1906, and it is important iii 
this case that you gentlemen should get a very clear view of that 
act, because it is the act providing for the Delegate to Congress from 
Alaska. It is the organic act of Alaska providing for the election 
ot the Delegate. It is the constitution of Alaska so far as it goes. 
It is the organic act which controls the people of Alaska in the 
matter of that election, and the Territorial legislature has no author¬ 
ity. Although it was created by a subsequent act it has no authority 
to alter, amend, modify, or repeal that act of Congress. 

Now, this act was passed and approved May 7, 1906, and I am 
going to call your attention to two or three sections of it because it 
is necessary for you to get that view. 

Section 1 provides—it will be found, Mr. Chairman, in the Thirty- 
fourth Statutes at Large, beginning on page 169—“ That the people 
of the Territory of Alaska shall be represented by a Delegate to the 
House of Representatives of the United States chosen by the people 
thereof in the manner and at the times hereinafter prescribed, and 
Avho shall be known as the Delegate from Alaska.” Prior to the 
passage of that act Ave had no Delegate from the Territory of Alaska, 
although it had been an organized Territory from 1884 down to 1906, 
and we got the right to elect a Delegate only by this act. Then it 
provides that the Delegate at the time of his election shall liaA^e been 
for seA^en years a citizen of the United States, pro\ddes his qualifi¬ 
cations and his compensation and* alloAvance for mileage, etc. 

Section 2 of the act provides for the first election of the delegate. 
The bill was passed at a time Avhen it seemed necessary to elect the 
first delegate for one year, for a portion of a term, and the act pro- 
Auded for the election of tAvo men at that time, one to serve for one 
year for the imexpired term in that Congress, and thereafter the 
election of another man, beginning Avith the subsequent Congress 
and running through the tAvo years. Section 2 provides for those 
first elections and proAudes the terms and the salary. 

And then section 3 of this act folloAvs, and that fixes the qualifica¬ 
tions of A-oters. I beg the attention of the committee to that partic¬ 
ular section, because it Avill be your standard and your guide all the 
Avay through this case. That section provides that— 

All male citizens of the United States 21 years of a.ue and over who are actual 
and hona tide residents of Alaska, and who have been such residents continu¬ 
ously durin,i; the entire year iininediately precedinjj the election, and who luiA^e 
been such residents continuously for 30 days next precedin.s: the election in the 
precinct in which they vote, shall be qualified to A’ote for the election of a Dele¬ 
gate from Alaska. 

There has been no change or modification of that laAv by Congress 
except this, that Avhen the act of 1912 passed—the act creating the 
Territorial legislature—there was a clause in that AAdiich gaA^e the 
Territorial legislature authority to extend the A^oting franchise to 
Avomen, and an act of the Territorial legislature after the passage of 
that act of 1912 provided for extending the franchise to Avomen. But 
with that exception there has never been any change in this section, 
and it is the standard for the determination of the rights of suffrage 
in the Territory of Alaska. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


31 


I call your attention now to two clauses in this section, with re¬ 
spect to residence, because they are important: That he must first 
be an actual and bona fide resident of Alaska. And then it provides 
that he shall have been such a resident continuously during the 
entire year immediately preceding the election. That is probably 
stronger language than you will find in almost any other statute in 
the ITiited States—“ and who have been such residents continuously 
for the 30 days next preceding the election in the precinct in which 
they vote.-' 

Now, those are the qualifications for an elector in Alaska, and the 
legislature has no authority at any tim.e to change those qualifica¬ 
tions. About that, of course, there is no controversy. Mr. Grigsby 
and I agree that the legislature has no authority to change those 
qualifications, and there is no authority for any person voting in 
the Territory of Alaska who has not resided continuously in the 
Territory for one year immediately preceding the date of the election 
and for 30 days immediately preceding the date of the election in 
the precinct. 

Mr. Kowan. Assume this, for instance, that you have not given 
up your residence in Alaska, that you had not been there, but that 
your residence was there. It does not mean your actual physical 
presence, does it? 

Mr. WiCKERSHAM. No; because he might be away on the business 
of the Territory. 

Mr. Rowan. Or on his own business. 

Mr. WiCKERSHAM. Or temporarily on his own business. The usual 
rule applies on that. You and I agree on that. I do not know what 
the court would hold about it, because there is strong language that 
you must reside there continuously for a year immediately preceding 
and continuously for 30 days next preceding the election in the pre¬ 
cinct in which they vote. 

Mr. Elliott. Mr. Wickersham, I notice in reading the record of 
testimony that some of these parties have injected this proposi¬ 
tion into this case: That Alaska was divided into divisions and that 
these divisions contained several precincts, and that if some fellow 
was absent from his precinct at the date of election and could not 
get back, that he was entitled to vote in the precinct where he was. 
Is that right? 

Mr. Wickersham. That is one on the questions that I am going to 
present to you, because the legislature passed a law of that kind. 
Mr. Grigsby and I both agree to that extent, that that law is null and 
void, and that the legislature had no such authority. In other words, 
the legislature could not alter the constitution, the organic act of 
its creation. 

Mr. Elliott. Do I understand, Mr. Grigsby, that you do not con¬ 
tend that that law is valid? 

Mr. Grigsby. Well, I have never contended that it was valid, Mr. 
Elliott. I rendered an opinion that the legislative act changing the 
residential requirements was void, and I do not know any reason 
yet to change my mind. 

Mr. Elliott. If that question is not going to come up- 

Mr. MTckersha^i. I think we might as well settle it. You will find 
Mr. Grigsby’s opinion on page 17 of this brief. 



32 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. Hudspeth. Have 3 011 a supreme court in Alaska? 

Mr. WiCKERSiiAM. No; all of our appeals of the four district courts 
in Alaska go to the ninth circuit at San Francisco. 

Mr. Elliott. Your courts are all Federal courts? 

Mr. MhcKERSiiAM. Yes: created an act of Congress, given their 
jurisdiction by an act of Congress, and our judges have all the 
powers of the United States district and circuit judges. In addition, 
the}^ have the power given to them by the organic acts creating the 
courts. 

Mr. Hudspeth. ^Phis cpiestion of voting and the residence of the 
voter in the precinct has never been passed on b}^ your higher court of 
appeals ? 

Mr. WiCKERSHAM. Oil, yes; I think it has been. 

Mr. PIuDSPETii. AVhat did it hold? 

Mr. WiCKERSHAM. They could not hold but the one wav, Mr. 
Hudspeth. 

^Ir. Hudspeth. The reason ^Y\\y I am asking this question is that 
in our constitution in Texas it provides that .vou can only have State 
prohibition In^ a vote of the people, j^et the legislature passed a 
statutory prohibition act that the higher court held invalid. 

Mr. MTckersham. You will find Mr. Grigsby’s opinion on page 17. 

Mr. Grigsby. Excuse me a minute. Mr. Elliott, I would like to 
reserve mv position on the law points at present and not bind myself 
bv anything. My position up to the time of this contest was as 
Mr. Wickersham states. 

]\Ir. Wickersham. Now, Mr. Chairman, section 4 of this act of 
1900 provides for election districts in Alaska, and provides that 
everv incorporated town, for instance, shall be an election district 
or precinct, and permits the town authorities to divide the town into 
precincts if thei’^ see fit, if there are enough votes, and thei^ frequently 
do that. 

Mr. Kowan. Does it provide the method of establishing precincts 
within an incorporated town? 

Mr. WiCKERSTTAAi. It providcs this [reading] : 

Sec. 4. That eiicli incorporated town in the district of Alaska shall constitute 
an election district, and where the popnlation of such town exceeds 1,000 
inhabitants the common co\incil may, in their discretion, at least 80 days 
before the election, divide the district iiito two or more voting- precincts and 
define the boundaries of each precinct. 

And then this section provides that the common council shall 
ajipoint election officers of the town and provides for polling places 
and for giving notice of the election, etc. 

Then section 5 of the act ])rovides. [Eeading:] 

That all of the territory in each re(*orded district now existing or hereafter 
created situate outside of an incorporated town shall, for the purpose of this 
act, constitute one election district; that in each year in which a delegate is 
to he elected the commissioner in each of said election districts shall, at least 
30 days before the day of said election, and at least 00 days before the date of 
each sul)S('quent election, issue an order and notice, signed by him. 

In which such order and notice he shall create the voting precinct, 
and that he shall give the election notice and that publication shall 
be made, and that he shall appoint the judges of election, etc. 

Now we have in Alaska recorders appointed in the recording pre¬ 
cincts of recording districts and each commissioner is a recorder. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 33 


The commissioner is the recorder, or the justice of the peace, probate 
judge, and the general public knows beforehand- 

Mr. Eowan. By United States statute? 

Mr. Wickersham. By United States statute. And in his record¬ 
ing district he is permitted to control, and in the voting precincts, 
wUile in the incorporated towns the town council does it. Those are 
the two authorities that make voting precincts in Alaska. The 
common council has charge of it in incorporated towns, of which 
there are 10 or 12, and the commissioners in the recording districts, 
of which we have about 40 or 50, in round numbers. Those are the 
authorities that are authorized by United States statute to cut up 
the country into voting precincts; nobody else has any authority. 

Now, section 6 provides that “the judges of election of each voting 
precinct shall constitute the election board for such precinct, and 
shall supervise and have charge of the election therein. They shall 
secure and provide a place for holding the election and a suitable 
ballot box,” etc. 

And it provides that the members of the board shall take an oath 
and they shall administer oaths to voters when it is necessary. And 
further on it provides that the two or three judges of elections in 
each voting precinct, outside of the incorporated towns, to be selected 
by a majority of said judges, shall also perform the duties of clerks 
of the election for that precinct. It provides for the election officers, 
in other words. 

Section 7 of this act provides for watchers at the polls. It pro¬ 
vides that Mr. (Irigsby, if he is a candidate for Delegate, and I, if I am 
a candidate, may appoint in each voting precinct one of our friends 
to go there and act as a watcher. It provides that he shall have a 
prominent place in the polling place, and shall have as much right 
there as the election officers, and shall challenge voters and see that 
no fraud is committed by the other side. It is a man to watch the 
other side. 

The next section, section 8, provides for filling vacancies on election 
dav. If election officers meet and there is not a sufficient number of 
them there the bystanders may elect a sufficient number to act as 
officers. 

Section 9 is important in one particular point in this case, and I 
will read that part of it. [Beading:] 


That the election hoards herein provided for shall keep the several polling 
places open for the reception of votes from 8 o’clock antemeridian until 7 o’clock 
postmeridian on the day of election. The voting at said election shall be by 
printed or written ballot. 

And then it describes a general outline form of ballot to be used, 
and the section also provides how the ballot shall be folded and put 
in the ballot box, and that a register shall be kept at the time of the 
votes. When you come up to vote in Alaska you are given a ticket, 
you are registered, you write your name down on the register, and 
“ at the time the ballot is so deposited the clerks of the election shall 
each of them enter in his duplicate register the name of the voter and 

the fact that he has voted.” ,11 • .l u- 

The man liimself does not register, but the clerk registers him. 
I think they generally register themselves, though. 

Mr. Rowan. What have you to say for the form of the ballot? 


181744—20-3 




34 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Mr. WiCKERsiiAM. There is the form right there. 

Mr. Kowan. Would any other form be illegal ? 

Mr. MTckersham. I think so. 

Mr. Eowan. Then, the form is “ For Delegate from Alaska,” with 
the name written or printed in after it? 

Mr. Wickersham. Yes. I think the legislature has no authority 
in the premises. I think this act is exclusive and that the legisla¬ 
ture has no authority. 

Mr. Eowan. Could that ballot for Delegate for Alaska under this 
law form part of the general policy ? 

Mr. MTckersham. Possibly. 

Mr. Eowan. AVould not that in some way make a change in this 
law? 

Mr. MTckersham. Possibly. That, however, I think is not very 
material in this case, although our legislature did pass what they call 
an Australian ballot laAv: and that will be called to your attention 
later. 

The Chairman. You voted under the Australian ballot law of the 
Territory ? 

Mr. MYckersham. Yes. 

The Chairman. The ballots were cast under that law ? 

Mr. MYckersham. Yes. 

Mr. O’Connor. Does this act of Congress prescribe the form of 
ballot ? 

Mr. Eowan. It does here. 

Mr. MYckersham. It does here. 

Mr. O’Connor. And you hold that the Legislature of Alaska has 
no power to amend it ? 

Mr. Wickersham. Absolutely none; no more than Congress can 
change the Constitution of the united States by passing some laws in 
violation of it. 

Mr. O’Connor. The legislature did provide for an Australian 
ballot ? 

Mr. MYckersham. Yes. 

Mr. O’Connor. Is that contrary to law ? 

Mr. MYckersham. Yes; I think anything with respect to the man¬ 
agement of the election law is a Adolation of this act. 

Mr. Hudspeth. But the election between yourself and Mr. Sulzer 
took place under the Australian ballot system. 

Mr. Wickersham. It did. 

Mr. Hudspeth. Do you contend that the election was void ? 

Mr. YYickersham. Not at all. 

Mr. Eowan. Was the law complied with ? 

Mr. IYickersham. Substantially, yes; in that respect. I am not 
making any point here against the form of ballot, because it would 
become necessary to consolidate the ballot and vote for other officers 
after the creation of the Territorial legislature, and I am not making 
any objection to the form and the policy. 

Mr. Eowan. It seems to me that that is a change of the organic law. 

Mr. Wickersham. It may be; and I quite agree with you that the 
legislature has no right to change the organic act. 

Section 10 of this act provides “ That any person offering to vote 
may be challenged by any election officer or any other person entitled 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


35 


to vote at the same polling place, or by any duly appointed watcher, 
and when so challenged, before being allowed to vote he shall make 
and subscribe to the following oath.’- Now, we are going to have 
some charges of false SAvearing here, and I want you to gi^^e attention. 

Mr. Roavan. AVhat section ? 

Mr. M iCKERSHAM. Section 10 of this act; and you aauII find it men¬ 
tioned there on page 11 of my brief. 

Here is the oath. [Reading:] • 

\oil do solemnly swear (or affirm, as the case may he) that you are 21 years 
()f a£?e and a citizen of the Uinted States; that yon are an actual and "bona 
tide resident of Alaska, and have been sncli resident during? the entire year 
immediately precedinjj; this election, and have been a resident in this votiii)?^ 
precinct for 30 days next preceding this election, and that yon have not voted 
at this election. 

Then the hiAv goes on. [Reading:] 

And further naming the place from which the voter came immediately 
prior to living in the precinct in which he offers to vote, and giving the lengtii 
of time of his residence in the former place. 

Noav, here is a peculiar clause, and I Avant you to listen to this. 
[Reading:] 

And wlien he has made such an affidavit lie shall be allowed to vote. 

It may be untrue, but it does not make any difference whether it 
is true or false; and it may be that the election officers knoAA^ that it 
is not true, and that it is false, but they hai^e no right to stop him 
if he makes oath. 

Mr. Cpiindblom. You haA^e similar laAvs in the States. For in¬ 
stance, if a man’s vote is challenged, he can bring in tAvo household¬ 
ers who vouch for him, and then he can vote. If he commits per¬ 
jury, he can be prosecuted. 

IVIr. AYickersham (reading) : 

And any person swearing falsely in any Mich affidavit shall be guilty of per¬ 
jury. 

Noav, section 11 proAudes that the elation hoard, as soon as the 
polls are closed, shall immediately jtroceed to open the ballot boxes 
and count and canvass the Amtes cast, and they shall thereupon 
make out certificates in duplicate, and one shall be sent to the Gov¬ 
ernor and one to the clerk of the court in the division. They send 
out tAvo copies of the election returns, one forAvarded directly to the 
governor of the Territory and the other one to the clerk of the 
court in the division. AVe hav^e four divisions in Alaska, four Imited 
States courts in Alaska, four United States judges, four Ignited 
States marshals, four Ignited States district attorneys—four complete 
sets of court officials; and this laAv provides that one of those re¬ 
turns in the division should be sent to the clerk of that division Avho 
files it in the court, so that Ave have tAvo sets of these returns. 

Section 12 provides that the goA^ernor, the surveyor general, and 
the collector of customs for Alaska shall constitute the Territorial 
canvassing board to canvass and compile in Avriting the Amtes speci¬ 
fied in the certificates of election returned to the governor from all 
the several election precincts. It provides that they shall canvass 
the results of the election and shall make a certificate of the re¬ 
sults of the election and the declaration of the results, and shall is- 


36 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


sue a certificate of election to the person who is elected to the legis¬ 
lature and to Congress and give him that certificate. 

Mr. Rowan. Does it require him to examine the ballots? 

Mr. Wickers HAM. No. 

Mr. Rowan. Only in the case of protest ? 

Mr. Wickersham. What it says about the matter is that the can¬ 
vassing board shall canvass'and coinjiile in writing the votes specified 
in the certificates of election. 

Mr. Rowan. A comjiilation ? 

Mr. AVichersham. A compilation. 

Section 13 provides for the giving of a notice by publication in the 
newspapers. 

Section 14 provides for the compilation of the expenses of the elec¬ 
tion. 

Section 15, being the last section in the act, provides the penalt}^ 
for violation of all of its clauses, and these penalties are very strict 
and cover almost every phase of fraud that can be perpetrated at an 
election. Anyone who by any means delays or procures the delay of 
the returns of election, or if he votes illegally, or if an election officer 
violates any duty imposed upon him, they are all to be punished as 
required by this act. 

Now, that is the election law passed by Congress in 1906, and it is 
under that act that our elections are held in the Territory of Alaska. 

In 1912 we passed what is known as the organic act of Alaska, cre¬ 
ating the Territorial Legislature of Alaska. That will be found in 
Thirtv-seventh United States Statutes at Large, beginning at page 
512. 

The first section of that act provides that the territory ceded to the 
United States by Russia by the treaty of March 13, 1867, shall be and 
constitute the Territory of Alaska, etc. 

Section 2 establishes the capital of the Territory at Juneau. 

Section 3 provides that the Constitution of the United States and 
all the laws thereof which are not locally inapplicable shall have the 
same force and effect in the said Territory as elsewhere in the Ignited 
States, and that all the laws of the ITnited States heretofore passed 
establishing the executive and judicial departments in Alaska shall 
continue in full force and effect, etc., and then it goes on and provides 
for the creation of the Territorial legislature. 

Section 4 provides that the legislative power and authority of such 
Territory shall be vested in the legislature, which shall consist of a 
senate and a house of representatives, and then it goes on and provides 
for their terms and for filling vacancies, pay, mileage, etc. 

Section 5 jirovides for elections— 

That the lirst election for nieinbers of tlie T.ef^islature of Alaska shall be 
held on the Tuesday next after the first Monday in November. 1912, and all 
subsequent elections for the election of such inemhers shall be held on the 
Tuesday next after the first IMonday in Novemher biennially thereafter. 

I want to call attention to what follows, “ That the qualifications 
of election officers, the supervision of elections, the giving of notices 
thereof, the forms of ballots, the register of votes, the challenging of 
voters, and the returns and the canvass on the returns as the result 
of all such elections for members of the legislature shall be the same 
as those described in the act of Congress entitled ‘An act providing 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


37 


for the election of a Delegate to the House of Kepresentativ es from 
the Territory of Alaska,' approved May 7, 190() —which is the act 
that I have just been reading to you—and all the provisions of said 
act which are applicable are extended to said elections for members 
of the legislature, and shall govern the same, and the canvassing 
hoard created by said act shall canvass the returns of such elections 
ami issue certificates of election to each member elected to said 
legislature; and all the penal provisions contained in section 15 of 
the said act shall ai)])ly to the elections for members of the legislature 
as fully as they now apply to elections for Delegate from Alaska to 
the House of Representatives.” 

So that the whole of that act of 1906 is made a part of the act of 
1912 so far as the election of members of the legislature is concerned. 

The next section provides or the convening of the sessions of the 
legislature. 

The next one for the organization of the legislature. 

The next one. No. 8, jirovides as follows [reading] : 

Tlmt the eiiaetinjjc danse of all laws passed hy the legislature shall he, “ Be 
it enacted hy the Legislature of the Territory of Alaska.” No law shall eiii- 
hrace more than one subject, which shall he expressed in its title. 

Now we come to the limitations of the powers of the legislature. 
Section 9 [reading] : 

The legislative power of the Territory shall extend to all rightful subjects 
of legislation not inconsistent with the ('onstitntion and laws of the United 
States, hnt no law shall he passed interfering with the primary disposal of the 
soil ; no tax shall he imposed upon the property of the United States, etc. 

And then follows a long list of limitations upon the power of the 
legislature. 

Mr. (trigsby. May I ask a question right there? 

Mr. 'WiCKERSiiAM. Yes. 

Mr. Grigsby. AVhy is the limitation expressed there ‘‘ not inconsist¬ 
ent with the Constitution and laws of the United States” ? Do you 
consider that that refers to the hnvs of the United Stiites relating to 
Alaska or to the general laws of the United States? 

Mr. AVtckerstia^u To both, I think. 

Mr. Grigsby. To both ? 

Mr. 'WickeRsiiam. I have not thought about that. I am like you 
about that; I would like to reserve my opinion that I might have on 
that. But it strikes me so at first thought. It is up to the com¬ 
mittee. 

Now, at the end of this section No. 9 is this clause | reading] : 

And all laws pns.sed, or attempted to he passed, hy sncli legislature in said 
Territory inconsistent with the i)rovisio]is of this section shall l)e mill and void. 

So that if the legislature undertakes to pass any act inconsistent 
with the Constitution and laws of the United States or inconsistent 
with any of these reservations made by Congress in this section 9, 
this section declares that such laws shall be null and void. There is 
no (jnestion about that. 

Then a proviso is added [reading] : 

Pr(n:i(Je<l fn'riJier, That nothing herein contained shall he held to abridge the 
right of the legislature to modify the ipialitications of electors hy extending 
the elective franchise to women. 


38 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


That is where you get that riglit. This act goes on in the next 
section to create certain legislative rules, and section 11 provides that 
a legislator shall not hold any other office. 

Section T2 provides for exemptions of legislators, that they shall 
not be held to answer before any other tribunal for any words uttered 
in the exercise of legislative functions. 

• Section 13 relates to the passage of laws. , 

Section Id provides for the veto power. 

Section 15 j)rovides for the payment of expenses. 

Section 16 provides that the law shall be transmitted to the Presi¬ 
dent and to Congress. 

INIr. Chixdblom. Before you get to section IT, Avhich is directly in 
point, it strikes me that the grant of powers to the legislature with 
reference to the subjects of legislation is plenary. 

Mr. WiCKERsiiA^r. Undoubtedly. 

Mr. Chindrlom. That the legislature of Alaska has full power to 
legislate on all subjects except as limited by the act. Was not that the 
etlect of'the language? 

Mr. WicKERSHAM. Judge Jennings has held just the opposite in 
the case I called your attention to. He holds that the legislature has 
no authority except that which is given to it; that it is a grant of 
powers. 

Mr. Chindrlom. It is a grant of power, but does not that grant in¬ 
clude every subject of legislation except those specifically prohibited 
in the grant? 

Mr. Wickersha:m. There are many prohibitions that I have not 
mentioned. 

Mr. Chtndrixim. But if you find no prohibition against the exercise 
of any particular power, then that act, which you are reading, grants 
the Legislature of Alaska the authority to legislate upon that sub¬ 
ject. 

Mr. WiCKERSHAM. It is granted a very wide range of power; there 
is no doubt about that. 

Section 17 provides for the election of delegates. Here we have a 
reference to the act of 1906 again, and I want to read this section. 
This makes a change in the time of holding elections. Under the act 
of 1906 the elections were held in August, and by this section the date 
of liolding the election is changed from August to November, at the 
date of the regular elections. [Reading:] 

That after the year 1912 the election for Delejtate from the Territory of 
Alaska i)rovicle(l h.r “An act i)rovi(lini>- for the election of a Delejtate to the 
House of Representatives from the Territory of Alaska,’’ approved INIay 7, 
190(>, shall he held on the Tuesday next after the tirst ^Monday in November in 
the year 1914, and every second year thereafter on the same Tuesday next 
after the first Monday in November, and jill of the pi-ovisions of the aforesaid act 
sb.all continue to be in full force and effect and shall apply to said election in 
every respect as is now provided for the election to be held in the month of 
Aujrust therein : ProriAed, That the time for holdinji an election in said Terri¬ 
tory for Delejtate in Alaska to the House of Representatives to till a vacancy, 
whether such vacancy is caused by failure to elect at the time prescribed by 
law, or by the death, resip:nation, or incapacity of the person elected, may be 
prescribed by an act passed by the I.e^islature of the Territory of Alaska: 
Provided further. That when such election is held it shall be governed in every 
resp(‘ct by the laws passed by Gont^i-ess jfoverninft such elections. 

In other words, the purpose of this section was to change the date 
from August to November, and then merely to provide that the elec- 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 39 

tion law of 1906 should govern, except that the right is given to the 
Territorial legislature to fix the time for holding a special election 
and providing that when the legislature fixes that time then that 
election shall be held under the general law. 

Now, that section is going to be important in this matter also. 

Then section 18 simply provides for the creation of a board of 
road commissioners of the Territory and section 19 for a codification 
of the laws, and section 20 of the act, and the last section, provide 
that all laws passed by the Legislature of Alaska shall be submitted 
to Congress by the President of the Ignited States, and, if disap¬ 
proved by Congress, they shall be null and of no effect. But, of 
course, until they are disapproved they are valid, if they are within 
the power of the legislature to pass. 

Now, those, gentlemen, are the two organic acts of Alaska provid¬ 
ing for the election of Delegates of Alaska, and those are the only 
acts. There is no other law giving the Territory of Alaska or any 
officer of the Territory of Alaska any authority or right to hold an 
election for Territorial Delegate except those two. 

Mr. ChiNdblom. I suppose you are coming to the question of the 
legality of calling the special election ? 

Mr. MTckersham. Not until the last thing. 

Mr. Chindblom. I do not mean to bring it up at this point. 

Mr. WicKERSHAM. Now, what I am trying to make this committee 
understand is this, as you will see on page 13 of my brief, that Con¬ 
gress is the supreme lawmaking body in Alaska. 

Second, it created and may abolish the office of Delegate. 

Third, it created and may abolish the Alaska Legislature. 

Fourth, its acts creating these agencies are organic and stand as 
the constitution of Alaska. 

Fifth, the Legislature of Alaska has only those limited powers of 
legislation granted to it by those organic acts, and it has those as 
fully as they are granted. 

Sixth, that Congress expressly withheld from the Legislative As¬ 
sembly of Alaska any power to alter, amend, modify, or repeal the 
organic act of May T, 1906, providing for the election of a Delegate to 
Congress from Alaska, by declaring in section 17 of the act of August 
24, 1912, creating the legislature, that “ all of the provisions of the 
aforesaid act shall continue to be in full force and effect and shall 
apply to the said election in every respect as is now provided for the 
election to be held in the month of August therein.” And Congress 
also expressly withheld from the Legislative Assembly of Alaska any 
power, authority, or control over a special election to fill a vacancy 
in the office of Delegate to Congress by declaring in the said section 
17 of the said act of August 24, 1912, creating the legislature, 
that the legislature should have power to fix the time for hold¬ 
ing such special election, but “ when such election is held it shall be 
governed in every respect by the laws passed by Congress governing 
such election.” 

Eighth, that thee act of May 7, 1906, providing for the election of a 
Delegate to Congress from Alaska, is the organic act—the consti¬ 
tution of Alaska, the sole and only law or power under which such 
election can be held, because, while it is referred to in the act of 1912, 
it is merely reaffirmed b}^ that act of 1912. 


40 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Ninth, and finally, any attempt by the Legislature of Alaska, by 
enactment or otherwise, directly or indirectly, to alter, amend, 
modify, or repeal the organic act providing for the election of a 
delegate from Alaska is ultra vires, null and void, and in direct viola¬ 
tion of the express reservation of that power withheld in the organic 
act—the constitution of Alaska. 

Noav, notwithstanding these strict provisions of the law, the local 
legislature did ])ass in 1915 an act called the Australian ballot law. 
I want to call your attention to that just a moment. Mr. Grigsby 
somewhere in his brief gives considerable credit to Mr. Sulzer for 
having passed that law. As a matter of fact, Mr. Sulzer had nothing 
to do with it. That law was prepared by a Member of the House, 
and I have it right here on page 55 of the session laws of Alaska for 
1915, being the second session. You Avill notice at the top of it—it is 
“H. bill No. 1—it was introduced in the house, and from section 
1 to section 23 (I think it is) the act is just as it was introduced in 
the house of representatives, in the lower house, by Mr. Driscoll, 
from the interior of Alaska. It was passed by the house and then 
went to the senate, and there I do not know whether or no Mr. Sulzer 
may have had something to do with it—I suppose he did. 

In the senate they attached the sections from section 24 to section 
40, those amendments, a whole lot of amendments that had nothing 
to do with the Australian ballot system in any shape or manner, and 
sent it back to the lower house. 

Mr. Kowan. IVhat is the title of the act ? 

]\Ir. IVicKERSHAM (reading) : 

An act to i)rovitle oflicial ballots for the elections in the Territory of Alaska. 

But all these other clauses relate to many other things, inducing 
Indians to vote, nonfeasance or malfeasance of election officers, 
fraudulent voting, attempting to influence voters, disqualified voters, 
bribery or influencing voters, and all that kind of thing. The bill 
■was passed in that shape. 

Mr. O’Connor. And in that shape it is an amendment to the 
organic law. 

Mr. IYickersham. The senate amendments were left on there. 

Mr. O’Connor. Let me ask you. where did the women of Alaska 
get their right to vote ? 

Mr. WiCKERSHAM. Fi’om that clause in the Federal act of 1912, 
which read, Pro vided^ That the Territorial legislature may extencl 
the franchise to women.” 

Mr. O’Connor. And they did that ? 

Mr. MTckersham. And they did that. 

Mr. O’Connor. And they voted in this Sulzer election? 

Mr. WiCKERSiiAM. Yes; in all elections. They vote in all the elec¬ 
tions. 

Mr. Chindbloim. I presume your contention is that that merely 
added one further class of voters to section 3 of the act of 1906 ? 

Mr. WiCKERsiiA^M. Yes, sir; but with the same qualifications, of 
course, as those of other voters. 

Now, as to whether or not this act of 1915 is valid or void, it is an 
attempt to change the qualifications of voters. On page 17 of my 
brief, you will find a portion of Mr. Grigsby’s opinion on February 
11, 1919, which I have here in his official report, and in his official 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


41 


report it is held—I can not find it jnst for the moment. Bnt it is 
in his official reiiort. 

Mr. Rowax. M hat was that provision in the organic act in regard 
to any law that tried to cover more than one subject being declared 
nnll and void ? 

AVickersiiaw. This act is nnll and void for that reason. 

Mr. (Grigsby. The language of the act does not say that it shall be 
nnll and void, it simply prohibits it. 

Mr. Wi(’kerstia:m. Prohibits it; and of course it being a prohibi¬ 
tion. it makes it nnll and void if it is violated. 

Mr. (Tiigsby, in his oi)inion. said- 

The CiiAiRiMAx. dnst a minute. That last sentence, '^‘becomes null 
and void because it is prohibited.” You mean, if I understand the 
reading of it, that if any law is passed that is in conflict or rather 
that is ]irohibited, it therefore becomes nnll and void. That is your 
proposition ? 

Mr. lY ICKERSIIAM. Y"eS. 

Section 8 provides— 

Tliat the enactiire; clause of all laws passed by the Le^,dslatiire of the Ter¬ 
ritory of Alaska shall he, “ Be it enacted by the Lejrislature of the Territory of 
Alaska.” No law shall embrace more than one subject, which slmll he expressed 
in its title. 

At the end of section 9 is this clause: 

And all laws passed or attemi)ted to he passed by such lejiislature in said 
Territory inconsistent with the provisions of this section shall he null and 
void. 

Now, I read those two sections together, and whether the words 
‘‘ null and void ” are added there or not, it has the effect. 

Mr. O'CoNx^OR. We have that provision in the constitution of 
Louisiana, that the act must not contain anything inconsistent with 
the carrying out of the objects and purposes- 

Mr. WiCKERSHAM. That is fairly within the general - 

Mr. Grigsby. That is germane. 

Mr. MTckersham. That is covered fairly by the title. 

Mr. Chindblom. That, of course, is always a question for the 
Supreme Court. 

Mr. AYickersham. This is the Supreme Court that I am talking 
to now, as far as this case is concerned. 

In that opinion Mr. Grigsby says [reading] : 

This section of the orjjanic act (which is the coiistiution of Alaska) continued 
in force all of the provisions of the act of ^lay 7, 190(), above referred to, in¬ 
cluding: the provisions fixing; the qualifications of electors for the ollice of Dele¬ 
gate frdm Alaska. 

The qualifications of electors for members of the legislature are fixed by sec¬ 
tion .5 of the organic act, as follows: 

“ That the qualifications of electors, the regulations governing the creating of 
voting precincts, the appointment and qualiticatious of election officers, etc., 
shall be the same as those prescribed in the act of Oongress entitled ‘ An act 
providing for the election of a Delegate to the tiouse of Itepresentafives from 
the Territory of Alaska,’ approved IVIay 7, 1906.” 

Thus it will he seen that the qualifications of electors of general elections in 
Alaska are fixed by our organic act. 

The Legislature of Alaska of 1915, in chaptei* 25 of the session laws of Alaska, 
1915, attempted to change the qualifications of voters with i-espect to the resi¬ 
dence required. Section 22 of said chapter provides, in effect, that any person 
of the age of 21 years, or more, who is a citizen of the United States, who has 





42 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


liver in the Territory of Alaska one year, and in the judicial division in which 
he or she oifers to cast his or her vote 30 days immediately preceding such 
election, shall be entitled to vote at all elections held therein. 

I have to advise you chat the legislature in attempting to change the quali¬ 
fications of voters by this act, exceeded its powers, the qualifications having 
been fixed by the act of May 7, 1906, and continued in full force and effect 
by the organic act or constitution of Alaska. The organic act expressly author¬ 
ized the legislature to extend the elective franchise to women but in no other 
way authorized the clianging of the qualifications of electors by the legislature. 

Respectfully submitted, 

George B. Grigsby. Attorney General. 

Mr. Hudspeth. AVhat effect ivoiild that leave, his opinion as 
attorney general ? 

^Ir. tAhcKERSHAM. It only shows that he and I agree on what the 
law is. 

^Ir. Hudspeth. Just like two other good lawvers? 

^Ir. W ICKERSHAM. YeS. 

The Chairman. When was that opinion rendered? 

^Ir. WicKERSHAM. February 11, 1919, rendered to the governor on 
request for an opinion upon that very question. 

Air. Grigsby in his report of March 1, 1919, to the governor, takes 
up tlie question of the election law and gives a further opinion. It 
is on page 18 in his report. I have it right here. He says: 

The election law passed by the legislatui'e of 1915 (chapter 25, Sessions Laws 
of Alaska, 1915), entitled “An act to provide oflicial ballots for elections in the 
Territory of Alaska,” should either be amended or an entire new election act 
enacted, ddie act is defective in the following particulars: 

1. Its scope is much broader than its title, which is contrary to the provi¬ 
sions of the organic act. It contains, in addition to the subject expres.sed in 
its title, to-wit, “ To provide official ballots for elections in the Territory of 
Alaska,” a provision for registration, a iirovision changing the qualifications 
of voters, and numerous iirovisions characteristic of corrupt practice acts which 
define offenses against the election laws and impose penalties. The law is un¬ 
doubtedly void as to all these latter provisions. 

So that he and I agree substantially that that act is void. I think 
it is entirely so. 

The Chairman. Xow, do j^ou mean it is void in so far as its terms 
conflict with the Federal statute or do yoir mean that it is void in toto 
because in part it conflicts Avith the United States statutes? 

Mr. WiCKERSHAM. I liaA^e no doubt first that it is void so far as 
it conflicts Avith the Federal statute. I think it is Amid in toto, be¬ 
cause of the defect in its title, Avhich he and I agree about. He does 
not noAv go that far. As I understand, Mr. Grisby thinks it is null 
and A’oid in ])art. As to that part Avhich is included AAuthin its title 
he thinks it is constitutional. 

Mr. Hudspeth. Any election held under that act Avould be a void 
election, Avould it not? 

Mr. WicKERSHAM. No; it only applies to the matter of the form 
of ballots. It applies to a lot of other things. But the only effect 
that it has upon the election is to fix the form of the ballot, and that 
form of the ballot is not particularly in conflict AAuth the form pro¬ 
vided for by Congress itself. So that I haAm not made any particu¬ 
lar point about that. 

^Ir. Hudspeth. I must have misunderstood you a Avhile ago. I 
understood you to say that it has other proAusions put in there by 
the Senate. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 43 

Ml. M iCKERSHAM. It lias, and as to those he and I both agree that 
they are void, that they do not relate to the ballot. 

Mr. Rowan. What does it say there about the ballots? 

Mr. IVICKEKSHAM. It simply provides that there shall be an offi¬ 
cial ballot issued by the clerk of the court. 

Mr. Rowan. Does it not provide how it shall be marked? 

Mr. WiCKERSHAM. Yes. 

Mr. Rowan. Is not that in conflict with the organic law? 

Mr. WiCKERSHAM. I think it is, but we have held our elections 
under it and the people have voted under it, and that is all there is 
to it. 

Mr. Chindblom. Does the organic law say anything with reference 
to the form of ballot ? 

Mr. Rowan. Yes; it prescribes the form. 

Mr. Chindblom. It provides “that the ballot at the first election 
shall be substantially in the following form.” 

WiCKERSHAM. Substantially in the following form. 

Mr. Chindblom. That is the manner in which the office and the 
name of the candidate shall be shown upon the ballot. But does it go 
to the extent of the things which are generally included in the term 
“Australian ballot system ” ? 

Mr. WTckersham. It makes an effort to provide secrecy of the 
ballot, and while the form of the ballot prescribed by Congress is 
not changed particularly, those clauses which follow in there are 
undoubtedly void. 

Mr. Rowan. It is substantially valid? 

Mr. W^icKERSHAM. Yes. 

Mr. Chindblom. It may be an official ballot, the ballot may be 
marked and cast in secret, the ballot may be furnished by the election 
officials, and still be substantially in the form as stated by section 3 
in the act of 1912? 

Mr. WTckersham. I am not making any point on that in this case. 
We both agree on that that there is no particular defect in the elec¬ 
tion on that account. 

The Chairman. In other words, the ballot that was used in your 
territorial legislature was, as both you claim, in substantial com¬ 
pliance with the Federal law, with reference to this? 

Mr. WTckersham. Yes, sir. There is no doubt about that. 

The Chairman. As I understand, neither of you makes any ques¬ 
tion about that ? 

Mr. WTckersham. No; my view about it is this, that an elector 
could vote a ballot complying with the United States statute, or he 
could vote a ballot that he could write himself, if it complied with 
the statute. 

The Chairman. That is, if the ballot is in substantial compliance 
with the Federal law ? 

Mr. WTckersham. Yes. 

The Chairman. I understand you. 

Mr. W^iCKERSHA^r. I do not think there is much point about that. 

Now. Mr. Chairman, the first point that I make on the merits of 
this case relates to incomplete canvass of the election returns. Wdien 
this election was over the election officers began to send in their elec¬ 
tion returns to the clerks of the courts of the four divisions- 

Mr. Rowan. This was a special election? 



44 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. AVickersha:m. No; the general election. On pa^e 19 of my 
brief I take uj) the matter of the incomplete and fraudulent canvass 
of the election returns. 

There were a lot of ballots cast that were excluded by the election 
officers. For instance, a ballot would be marked on the right-hand 
side instead of on the left-hand side as prescribed by the election 
law. 

Mr. Hudspeth. Let me see if I follow you right there. In my 
state we mark out the name with a blue pencil that which we do not 
Avant to Amte for. 

Mr. IViCKERSHAM. They do sometimes here. 

Mr. Eoaa'an. Did you read the provision of the laAv'as to hoAv they 
express their choice. 

Mr. Hudspeth. In Arizona they put a cross right next to the name 
they Avant to Amte for. What is the method here ? 

Mr. MTckersham. In the instructions to Alters the form is pre¬ 
scribed here [reading] : 

Mark X in the square at tiie left of tlie names of tiie candidates for whom yon 
desire to vote. If the name of tlie candidates for whom yon desire to vote doe.s 
not appear upon the ballot insert with a pencil in the blank space. 

There is a blank space to the left in which to make the mark. A 
great many mark on the right-hand side instead of on the left. This 
is the Territorial act. 

Mr. Hudspeth. Do you hold that that is a Amid ballot ? 

Mr. IAickersham. No; I do not, for I hold that anything which 
shoAvs the intention of the Amter is legal. 

Mr, Hudspeth. I think you are correct there. 

Mr. MTckersham. IVe do not differ. 

Mr. Hudspeth. Although in the contest OAmr the election of goA^- 
ernor in Arizona it Avas held that such ballots Avere Amid and they 
were thrown out, although the Amter had expressed his choice by 
making a cross on the right-hand side. I think the decision Avas 
Avrong. It Avas a Democratic court that seated a Democratic gov¬ 
ernor, but I think it Avas Avrong. 

Mr. 'VVicKERSHAM. It Avas Avrong in Alaska ; for our Alaska laAv, 
passed by Congress, does not make any special provision as to that 
and does not make a ])enalty such as that. 

The Chairman. Does it prescribe hoAv the voter shall mark his 
ballot ? 

Mr. Wickersham. No ; it does not prescribe anything at all. 

The Chairman. Makes no proAusion? 

Mr. MhcKERSiiAAi. No pimvision for it. He could Avrite his name. 

Mr. CiiiNDBLOAi. Do you not tliink, as a matter of fact, the con¬ 
templation of the act of 190() Avas that a man, a voter, desiring to 
Amte for a Delegate for Alaska Avould vote a ballot containing only 
one name? 

Mr. AV ktvershaai. A^es. 

Mr. CiiiNDBLOM. And that ballot, if in the form jirescribed here 
for Delegates from Alaska, Avould have no marks on it, but Avould 
be the old Amst-pocket ballot that Ave used to have in the States, 
Avhere you had your oavii ticket and put it in the ballot box ? 

Mr. AAhcKERSiiAAi. My vieAv is that if he votes that kind of ballot 
there is no question about its being legal. Or if he votes any ballot 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


45 


vliich is substantially that, if lie puts the name opposite the candi¬ 
date on either side, substantiallv to show his intention, it is the 
same thine:. I think we do not disagree about that at all. 

Mr. (iRiosBY. When you state that we do not disagree, I do not 
want to commit myself, because I do not want to be barred. 

Mr. \\ icKERsiiAM. I apjireciate that. I am doing all the talking, 
and you are not barred by anything I say. 

The part about the 60 or 100 ballots Avas this: T had nothing to 
say about this election. My opponent had the machinery of the 
election. The governor of Alaska appoints the commissioners. The 
commissioners appoint the election officers, excepting in towns, where 
the toAvn council appoints the election officers. The law provides 
that they shall })rovide one man from the opposite political party, 
but we have two or three bunches'of Eepublicans, and one bunch is 
ahvaA^s fighting me, so that Avhen the Democratic officers got ready 
to appoint these officials they Avould appoint their personal friends 
and then my Republican enemies. AVhen they Avould take up one of 
these liallots in some precinct and find a vote for Wickersham and 
Avould note that the cross mark Avas on the right-hand side, and tlie 
hiAv provides that it shall be put on the left-hand side, they would 
say, ^Ve will throAv it out,” and out it Avould go. In another precinct 
they Avould say, Here is one for Sulzer. It is on the right-hand 
side, but it shoAvs the intention of the Amter, so we Hvill count it.” 

^Ir. Roaa’ax. Are these Azotes before us here? 

iVIr. IVioKERSiiAAf. Yes. So I got it both coming and going. 
IVherever there Avas a vote they could throAv out on a technicality 
they Avould throAv it out if it apparently Avas against Mr. Sulzer. 

Mr. HmsPETii. Will you shoAv the committee those? 

Mr. Wickersham. Yes; there is no question about it. I Avill show 
them. I am referring to the situation that exists in reference to 
these 50 or 60 or 100 oallots that were not counted. There were a 
lot of those ballots that were throAvn out, and they Avere sent Avith 
the election returns to the governor’s office, and the canvassing board, 
when they got to the point of canA^assing this vote, began to count 
those ballots as they did two years ago. The canvassing board in 
1916 counted all those ballots and determined whether the election 
officers of thesQ various precincts had been right or not, and they 
counted them. They would throw it out because it Avas against me 
and count the same kind of a ballot for my opponent in the next one. 
They had a standard that determined what rule should be followed. 

Mr. O’Connor. What Avas that standard? 

Mr. Wickersham. I do not know what it Avas except that it showed 
the intention of the voter. 

Mr. Hudspeth. That was the Territorial canvassing board? 

Mr. Wickersham. That Avas the Territorial canvassing board, 
created by act of Congress. 

Mr. Chindblom. What was the total vote in 1918 for Delegate? 

Mr. MTckersham. Something over 9,000. 

Mr. Hudspeth. Did the result of that canvassing board sIioav you 
had a majority? 

Mr. Wickersham. The result of the canvassing board in 1916? 

Mr. Hudspeth. I am referring to the last election. 

Mr. AYickersham. I will tell you about it. They got along quite 
a little ways, and were canvassing all these votes, Avhen they dis- 


46 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


covered that I was winning. Then the canvassing board, headed by 
the governor, said, “ This will not do. We will have to submit this 
to tlie attorney general,” and my friend here, being the attorney gen¬ 
eral, they submitted it to him, and he very promptly reversed himself 
of two years ago when he held they had a right to count those votes, 
and that they did not have a right at this time. The votes were never 
counted. 

The Chairman. In other words, the canvassing board held that 
as a canvassing board they had no right to go into the ballots that 
had been thrown out and count them for either of the parties? 

Mr. Wickersham. No; Mr. Grigsby held that, and the canvassing 
board followed his opinion. 

Mr. Chindblom. Does the canvassing board in Alaska actually 
recount the ballots? 

Mr. Wickersham. No; they only take the returns, but with the 
returns are the rejected ballots, and they count them because they 
have never been counted. The decision would be made by some rule 
showing the intention of the voter. 

Mr. Chindblom. Are those rejected ballots brought here sepa¬ 
rately ? 

Mr. Wickersham. Yes. 

Mr. Rowan. AYith regard to the last election of 1918, the rule of 
the canvassing board was that they would not go into the question 
of sufficiency of the ballot, but merely forwarded them, did not con¬ 
sider them ? 

Mr. Wickersham. Did not consider them at all. Those ballots are 
here and have not been counted. Whether or not, they did not do it. 
They did do it in 1916. 

The Chairman. Was the ruling correct? 

Mr. Wickersham. Thev did it in 1916; but, they did not do it in 
1918. 

The Chairman. Had they any more right to canvass these ballots 
than they had to canvass the count other ballots? 

Mr. Wickersham. I am not clear about that. But I say they did 
do that. 

Mr. Rowan. They canvassed the compilation. I suppose the legal 
question brought up before them was as to whether or not they had 
anything else to do except to see that the compilation was correct. 

Mr. Wickersham. Yes; but along with these returns were 50 or 
60 rejected ballots that had been cast. Mr. Grigsby instructed them 
in 1916 to canvass them. In 1918, when it was dangerous, tliey were 
not canvassed. 

The Chairman. That is they claimed it vras not their duty to can¬ 
vass these ballots. 

Mr. Wickersham. I am not prepared to say that the opinion is 
correct. Here are the votes never having been canvassed. They are 
up to this committee to determine Avhether these people are to have 
their votes counted. 

At page 738 of the record the question came before the canvasing 
board. [Reading:] 

The Chairman. Now, about this ballot. It is clearly improperly drawn, but 
the intention of the voter seems to be indicated. 

Mr. Davidson. It looks that way to me, too. 

The Chairman. I suggest that that ballot be counted. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 47 


Mr. Davidson. I u^iree with you there. I think tluit is ihainlv indicated. We 
found a lot of them like that last year. 

The Chairman. What did you do? 

Mr. Davidson. We counted them. 

]Mr. Garfield. Does it require a motion? 

The (Ti AIRMAN. Requires a motion. 

Mr. Garfield. Then I move you, ]Mr. Chairman, that this vote— 

These 50 or GO liallots— 
be counted. 

And they went at it and they kept at it, until they found they were 
losing out on the proposition’; they got about half done, then they 
stopped it, because it was going to land me in, apparently. At least 
my attorney tells me that. I have not seen the ballots and know^ 
nothing about it except what he says. 

Then, February 18, 1919, on page 794 of this record, Mr. Grigsby 
wrote a long letter to the governor and chairman of the canvassing 
board; he wound up his advice by saying, on page 797, this: 

Whatever error the judges of election may have committed in the acceptance 
or rejection of ballots, they can only be corrected by the tribunal having juris¬ 
diction to try election contests. 

It is signed “ George B. Grigsby.” 

Now, he thinks it is up to you gentlemen, and I am submitting it 
to you also, so that I suppose there will be no question about it. 

But now my attorney—it is in this record that he was present at 
the time these things hap])ened, and I know nothing about it except 
as he testifies on page 187 [reading] : 

Mr. Marshall. T will continue right along. In the hegimung of the canvass 
certain ballots appeared whereon the voters had indicated their choice by 
marking a cross at the right of the names of the men for whom they desired 
to vote and certain others where they had apparently indicated their choice by 
striking out the names of all except those for whom they desired to vote. 

In any event, the canvassing board considered that the purpose of the voters 
under the two circumstances stated was clearly manifested, and they proceeded 
wherever ballots of that character had been rejected by the judges of election 
to count those ballots for the candidate for whom they had been cast. This 
method was pursued until possibly little more than half of the returns had 
lieen canvassed, when it was apparent from records that had been kept that 
Judge Wickersham had gained by this procedure, I think he having made a 
net gain of nine votes. It was apparent .that the election would be very close, 
and the Bristol Bay precinct had not yet been received, and the canvassing 
board raised the question as to the propriety of counting ballots such as I 
have described and determined to call upon George B. Grigsby, then the attorney 
general, for his opinion as to their right to count such ballots. 

Now, there is no use of going over all that, but Mr. Grigsby gave 
this opinion as I have stated it. 

^Ir. Grigsby makes some controversy about the fact that I say 
here in my brief, ‘‘ The fact is that neither contestant nor his attor¬ 
neys have eA^er been ])ermitted to see or inspect these rejected ballots.” 
AVell, that is true. They were in the hands of the canvassing board 
and they Avere so managed and manipulated that my attorneys could 
see only just a little noAv and then, and hear the conA^ersation, and 
get some sort of an idea, and they haA^e indicated their official ideas 
themselves about the 50 or 60 votes and the question Avhether those 
votes are going to be canA^assed or not; Avhether, as Mr. Grigsby 
says, this committee can examine those Amtes and determine Avhether 
they shall be counted either for him or for me, as appears to hav^e 


48 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

been the intent of the voters. I have never seen the ballots; I know 
nothing about them. They have been in the charge of my partisan 
opponents all the time, and marks are easily changed. 

Mr. Eoavan. Can yon instance any illegality in the keeping of the 
ballots during that time? 

Mr. Wtckersham. No. 

^Ir. Eowan. It is mere inference? 

Mr. Wtckersha:m. Mere inference; mere suspicion. There is no 
evidence that there has been any changes, except by Mr. Rustgard. 

Mr. CirTXDBLo:s[. If this committee should inspect those rejected - 
ballots, do you think that should be done without an inspection of 
all the other ballots? 

Mr. WK’KERsnAM. Yes; the other ballots have been all inspected 
and counted, and they are included in the election returns and the 
votes all compiled. Now, of course, in those ballots there are ballots, 
as I tell you, that are counted for Mr. Sulzer that are exactly like a 
lot of those that are thrown out. So I am informed by those who 
have examined the ballots at various places. But there is no evi¬ 
dence in the record, so that you probably would not get to them. 

Mr. Grigsby. The ballots are all here in evidence. 

Mr. CiiiNDBLOM. All the ballots are here? 

IVIr. AVtckersiiam. I suppose so. 

There are charges of fraud in this case, and I want to call the com¬ 
mittee’s attention to those charges of fraud for a moment. They are 
referred to on page 25 of my brief. There was an election in Ketchi¬ 
kan. The Ketchikan election precinct is the most southern precinct 
in the Territory of Alaska. The commissioner in that precinct is a 
man by the name of Mahoney. He is the clerk of the United States 
district court at Ketchikan, and he is the commissioner in that 
district. 

There are 12 or 13 precincts in his election district. He is a very 
bitter partisan. He bet on the election, and he ran an automobile, 
and did all sorts of things on election day himself, as clerk of the 
court. His office is in the town of Ketchikan. Ketchikan is an 
incorporated town. He did not appoint the election officers in that 
town of Ketchikan, so he is not responsible for Avhat happened in 
the town. But outside of Ketchikan, at 10 voting precincts scat¬ 
tered over a territory of 50 miles, he appointed all the election offi¬ 
cers in those outside precincts. 

On election day Mr. Sulzer was in Ketchikan. Mr. Sulzer lived 
at that time at a little place called Sulzer, about 60 or TO miles west 
of Ketchikan, across an arm of the sea, and in another precinct alto¬ 
gether; but that precinct was in this election district. Mr. Sulzer 
came down to the polls at Ketchikan, hoAvever, and offered to vote. 
He, of course, being a well-known man and politician, some of my 
friends objected to his voting, and he Avas challenged. He protested 
someAvhat mildly, and they gave him a copy of the challenge oath 
Avhich everybody has to take under the United States Statutes, and 
which I have read to you. Mr. Sulzer took that challenge oath, 
according to the testimony here, and read it very carefully, and then 
laid it doAvn and said he did not care to take that oath; he refused 
to sign the oath and vote. 

He Avent out of the election room; Mahoney met him outside Avith 
an automobile, and took him and tAvo other men in the automobile. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


49 


and ran him down to the beach, a mile just outside of the town, to 
a place called Charcoal Point; here, at Charcoal Point, the election 
officers were all appointed by Mahoney, and Mr. Sulzer went in 
there and voted. Nobody challenged him; he voted in the Charcoal 
Point precinct, away from his own precinct, in violation of the 
statute which I have read to you. He had never resided in the Char¬ 
coal Point district; Avas not a resident there, and made no pretense 
of being. He violated the laAv and voted; but, Mr. Sulzer is dead 
and nothing can be done about it; nevertheless, his vote is alive and 
it should be throAvn out. It is admitted, I think, that he voted for 
himself. Mr. Grigsby does not disagree that his vote is an illegal 
A^ote, and must be thrown out. 

Mr. Grigsby. I do not Avant to be committed. 

Mr. WiCKERSHAM. I am not speaking for you, except in the record 
you do admit it. 

In the automobile that Mahoney drove down to Charcoal Point, 
Avas an Indian named George Nix. This Indian resided near Sulzer, 
at the Indian reservation. He was a “ reservation Indian ” over 
there. Mahoney took him doAvn in the same automobile, and this 
Indian was,challenged. 

Mr. PoAVAX. Had he attempted to vote in the other place? 

Mr. WiCKERSHAM. I think he had. I think the vote shows that, 
although I am not sure about it. Anyway he was taken down to 
Charcoal Point in this same automobile, and went in and Avas chal¬ 
lenged ; the challenge oath Avas prepared for him, the Indian signed 
it before the election officers, and voted. 

Mr. CmxDBLOM. At Charcoal Point? 

Mr. WiCKERSHAM. At Charcoal Point. 

Mr. O’Connor. Has any prosecution ever been instituted against 
him? 

Mr. WiCKERSHAM. No. He was taken there by Mahoney, the clerk 
of the court, in his automobile, and the evidence shows that Mahoney 
stood right there, and when the Indian hesitated he said to the In¬ 
dian, Sign that paper.” And the Indian signed it at Mr. Ma¬ 
honey’s request. 

Mr. Chindblom. Did you say that somebody challenged him? 

Mr. WiCKERSHAM. Yes; a Republican challenged him at Charcoal 
Point. 

Mr. O’Connor. Then he makes the affidaAdt after he is challenged? 

Mr. WiCKERSHAM. Yes; he does not make the affidavit until after 
he is challenged. 

Taylor Althouse tells the story about the Indian and says that he 
challenged him. [Reading:] 

He came in there, and I said, “ I challenge that man,” and Mr. Mahoney 
said, “On what ground?” and Mr. Mahoney and I are acquainted, and I said, 

“ On account of the company he is keeping,” meaning he was a Democrat. I 
intended nothing personal, and Mr. Mahoney told me then that I would have to 
give a reason, and I said, “ He is not a resident of the precinct.” 

There was some more talk back and forth, and Mahoney told the 
Indian to sign it and the Indian signed it and swore to it and voted. 

Mr. Roavan. Was there proof in the record that he was not a resi¬ 
dent ? 

181744—20-4 



50 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. WiCKERSHAM. Yes; all tlie witnesses testified to that posi¬ 
tively. There is no claim that he was. 

Mr. O’Connor. Except his affidavit. 

Mr. WiCKERSHAM. Except his affidavit, which was false. 

Having read Taylor AJthouse’s testimony, I will now turn to 
that of E. C. Austin, the Democratic head of the Charcoal Point 
board of election, appointed by Mahoney, the Democratic commis¬ 
sioner and deputy clerk, and hear his testimony at page 567 of the 
record. Austin testified [reading] : 

Q. Do you remember George Nix from Hydaburg?—A. I remember there 
was a man by that name. 

(}. An Indian?—A. I think so. 

(>, Do you remember whether he was challenged?—A. By Mr, Althouse, I 
think. 

Q. And swore in his vote?—A. Yes, sir. 

Q. And you administered the oath to him?—A. I did. 

Q. And be swore that he had lived in that precinct 30 days prior to elec¬ 
tion?—A. Charcoal Point? 

Q. Yes.—A. I don’t remember. 

Q. Do you know the form of the oath you administered to everyone who was 
challenged?—A. Yes, sir, 

Q. You knew he hadn’t been a resident of Charcoal Point 30 days?—A. He 
registered from Sulzer. 

Q, Why did you let him commit perjury?—A. I wasn’t there to protect him; 
he ought to know what he was doing. 

Q, He was an Indian?—A. Yes. 

Q. From Hydaburg?—A. I don’t know; Hydaburg or Sulzer—somewhere on 
the west coast. I read over the affidavit to him—the challenge before he signed 
it—and he signed it. 

Q. And swore to it before you?—A. Yes. 

Q, And you at that time knew that he was not a resident of that precinct?— 
A. Yes; certainly I did. 

That shows you the character of Austin and Mahoney. 

Mr. Eowan. Just to make the point clear on the law, was he not 
bound to take that vote ? 

Mr. WiCKERSHAM. Yes; but he was not bound to swear him. He 
knew it was perjury. 

Mr. Rowan. But he swore to it. 

Mr. WiCKERSHAM. He was obliged to receive his vote, but he knew 
he was not entitled to vote; and, he knew that the Indian was com¬ 
mitting perjury, and he saw this other man standing there telling 
him to sign the paper. 

Mr. O’Connor. Your opinion is that although the man had a right 
to vote there the election officer should be precluded from administer¬ 
ing the oath ? 

Mr, WiCKERSHAM. No. The election officer did not have to become 
party to a perjury. 

Mr. O’Connor. But we are talking about the law. 

Mr. Roavan. But the law gives him the right to vote if he takes an 
oath. Why is it not the election officer’s duty to present the oath 
and ask him whether he will take the oath ? 

Mr. WiCKERSHAM. Not when it is perjury. 

Mr. Grigsby. Then they have the right to judge in some cases. 

Mr. Roavan. I know it is different in our State. I know if a man 
insists on voting he has a right to. 

Mr. O’Connor. He simply takes the risk of prosecution. 

Mr. Chindblom. I do not recall this fact. The legislature passed 
a ballot law which changed the qualifications of voters? 


WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


51 


Mr. WiCKERSHAM. Yes. 

Mr. Chindblom. Did those changes include a provision that a man 
might register and vote anywhere in the division ? 

Sir. IVicKERSHAM. Yes, sir. 

^Ir. Chindblom. Were there other candidates upon this ballot be¬ 
sides the Delegate to Congress ? 

Mr. WiCKERSHAM. Yes; all the candidates for the legislature Avere 
on this same ballot. But the election officers had all been instructed 
upon the face of the election returns, as you will see, by Mr. Grigsby 
in his opinion as to their qualifications. He has given all the elec¬ 
tion officers this opinion, as I will call to your attention in a moment. 

Mr. O’Connor. Under the Territorial act, this Indian did not vio¬ 
late any law ? 

Mr. WiCKERSHAM. Uiidei* the Territorial act, no. Yes; he did. 
Yes; he SAvore that he had resided in that precinct for 30 days. He 
committed perjury. 

Mr. Roavan. That Avas the form of the oath ? 

Mr. WiCKERSHAM. That Avas the form of the oath. 

Mr. O’Connor. But under the Territorial act he could haA^e regis¬ 
tered from any division. 

^Ir. WiCKERSHAM. Xot if he Avas challenged. That Territorial 
election Avas Amid. 

^fr. Chindblom. Evidently the election officials Avere not following 
the Territorial law? 

Mr. WiCKERSHAM. The election officials were filling the ballot box 
just as fast as they could, Avith any sort of Amtes that came in. 

Mr. Chindblom. But Avhen they insisted upon a challenged voter 
making the affidavit that he Avas a resident of the precinct in Avhich 
he had attempted to Amte, they were not following the Territorial 
election laAv? 

Mr. WicicERSHAM. It makes them guilty of perjury. 

Mr. A. E. A. Heath, on page 122 of the record there, testified 
[reading] : 

(y Do you know that there was an Indian voted there that day l)y the name 
of Nix, I think his name was (Jeorj;e A. Nix?—A. There Avas such a man who 
Avent and A’oted. 

(}. Had yon seen him before?—A. I don't think so. 

Q. Do you kiioAv Avliere he resided?—A. He claimed to reside on Prince of 
Wales Island, 

(}. Did he reside in the Dharcoal Point precinct?—A. No. 

(}. AVho bi-oujiht him in there, do you knOAv? —A. No; I AAmuldn’t he positiA’e 
about that. They were lu-inging them dOAvn in cars, but I wouldn’t be positi\m 
he Avas brought in a car or not ; there Avas quite a bunch of felloAvs came in at 
the time. 

Q. Isn’t it true that Mr. William T. Mahoney, the commissioner in this dis¬ 
trict, Avas very busy all that time bringing people to vote?—A. Y^es; he brought 
them doAvn several times. 

Q. Do you knoAV Avhether he brought Nix down? —A. I Avouldn’t be positive; 
my impression is he did. 

*Q. Do you i-emembei- some objection made to Nix’s voting?—A. Yes; there 
Avas a watcher there that objected to his voting. 

(y AMio Avas that, if you remember?—A. Old man Althouse was the Avatcher; 
and he left at one time and Avent to dinner, and Oliver took his place, and I 
Avouldn’t be positive Avhether Oliver or Althouse Avas there at the time. 

Q. Do you remember that Nix SAvore in his A'ote?—A. Y^es. 

Cy A\’hat oath did he take, do you knoAV?—A. The printed oath that they 
usually take; Austin read it to him. 

(y And he SAA’ore to that oath?—A. Y>s. 


52 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Q. It is tlie oath required by tlie election law?—A. Yes. 

Q. United States election law for tlie Territory? Is that right?—A. Yes. 

Q. Had you ever seen Nix in that precinct before?—A. No, sir. 

Q. Did he reside in that precinct?—A. No; he resided in Hydaburg, he said. 

Q. Where is Hydaburg?—A. Over on Prince of Wales Island. 

Q. It is an Indian reservation?—A. I think so. 

Q. Over beyond Sulzer post office?—A. Yes, sir; it is in Sulzer precinct, I 
think. 

I quote here in the brief the challenge oath which he signed stat¬ 
ing that he had actually resided in the precinct 30 days. 

Mr. Hudspeth. Is there any evidence as to whom he voted for T 

Mr. IYickersham. Yes. 

Mr. Hudspeth. IVhat is that ? 

Mr. WicKEPvSHAM. The evidence is that he was brought down there 
in the vehicle with Mr. Sulzer and these other people, and I am not 
sure but what he has stated. Anyway, there is no question about 
that. It is in the record. 

]Mr. Austin was on the witness stand and under the general ques¬ 
tioning as to the filling of this ballot box Austin testified, on page 31 
of the brief, that they were bringing these people down there in auto¬ 
mobiles from Ketchikan, were catching everyone they could in Ketchi¬ 
kan and trying to vote them, and if they were challenged and found 
that they could not get their vote in at Ketchikan because the elec¬ 
tion officers were not appointed there by Mahoney; they were not per¬ 
mitting any fraudulent votes in that precinct, and so, if they could not 
get a vote in Ketchikan, they would run him down to Charcoal Point. 

There was no objection made to voting men there. And Austin 
admits substantially that they Avere doing that all day. He does not 
admit it in that language, but upon inquiry, “ Whenever they couldn’t 
get their votes in here the}^ Avent doAvn to Charcoal Point,” he said, 
“ I haA^e heard since the judges had no way of knoAving; they brought 
these people in there, and they voted if they came Avithin the quali¬ 
fications; and the practice was folloAved that they registered from 
the precinct they liA^ed in, and Ave alloAved them to vote.” So that, 
AAdiereA er they came from, Juneau or anywhere else, they allowed them 
to vote. 

The Chatraian. I notice that you state they registered from a cer¬ 
tain locality. 

Mr. Wickershaai. Yes. 

The Chatraian. Did all the voters give their residence to the judges 
Avhen they voted? 

Mr. WicKERSHAAf. That I do not know. I haA^e no information 
about that at all except Avhat they say Avas that they knew where these 
men came from. 

The Chairaian. I understand that, but I was only getting at what 
the custom Avas Avith reference to registering voters. 

Mr. WicKERSHAAi. That I do not know. 

Mr. O’Connor. Why did not this Indian offer to Amte in the pre¬ 
cinct in which he really liA^ed? 

Mr. IYickershaai. Because he could not get home. He Avas 60 or 
70 miles aAvay from home across the Avater, and no boat running. 
The distances are so great in Alaska, that tAvo precincts may join 
each other and the Acting places be 60 or TO miles apart and a boat 
only runs once a Aveek. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


53 


Mr. CiiiNDRLOM. You have no system of registering votes in 
xVlaska ?. 

Mr. AVickersham. P^xcept Avhen they come to vote. 

Mr. Chixdblom. There is no preliminary registration? 

Mr. W ICKERSHAM. No. 

Mr. (trigsby. The voter signs his name, under the territorial act. 

Mr. MTckersham. The clerk is instructed under the United States 
statute, or under the territorial act, that the voter may sign his name. 
I expect that is correct. 

There was a drummer in Janeau on that day, one of these fellows 
who goes around to sell dry goods and so forth. He lived in Seattle. 
As a matter of fact he claimed residence in Juneau, about 200 miles 
north of Ketchikan. But he was in Ketchikan that day so, he came 
out and tried to vote at Ketchikan. 

Mr. Eoavan. What was his name? 

Mr. WiCKERSHA^r. A. Van Mavern. It is referred to on page 31 
of my brief. He could not vote at Ketchikan, and so he went out 
to Charcoal Point. Mr. Austin testifies in page 568 of the record. 
[Keadmg:] 


Q. He was not challenged?—A. No. 

He was not challenged at Charcoal Point. Contestant called Van 
Mavern, at Juneau, page 155 of the record. [Reading:] 


Q. Now, Mr, Van Mavern, when did you first establish your residence in 
Juneau?—A. About six years ago. 

Q. And you have had Juneau as your residence since?—A. Yes, sir. 

Q. You were at Ketchikan on the 5th of last November?—A. Yes, sir. 

(J. And you voted at the Charcoal I’oint precinct at that time?—A. Yes, sir. 

Q. How did you come to vote there?—A. Because I happened to be in Ketchi¬ 
kan is all, I think. 

Q. W’hy did you not vote at Ketchikan instead of Charcoal Point?—A. I went 
there first, and" there was some question as to whether I would be permitted to 
vote there, and so I walked out to Clmrcoal Point. 

Q. You were at that time a resident of Juneau?—A. Yes, sir. I suppose I was. 
I was not a resident of Juneau any more than Ketchikan in reality. 

Q. How long had you been at Ketchikan?—A. Two days; perhaps three at 
that time. 

Q. How long did you remain there?—A. I don’t remember now; perhaps four 
or five days. 

Q. You were there taking orders for goods?—A. Yes, sir. 

(j. You had your office here in Juneau?—A. Yes, sir. 

Q. You had a room at the hotel here in Juneau?—A. Yes, sir; as a transient, 
not a permanent room at that time. 

Q. Juneau was your headquarters?—A. Yes, sir; considered such. 

Q. And from .Tuneau you made trips as a traveling salesman to the various 
smaller towns in southeastern Alaska?—A. Yes, sir. 

Q. You think you were just as much a resident of any other small town in 
Alaska as Ketchikan?—A. Yes, sir; or Juneau, veaWj. 

Q. Well, you had an office in Juneau?—A. Yes, sir; hut I did not spend any 

more time here than in Ketchikan. * t -r 

Q. Where did you have your personal belongings?—A. In Juneau. 

Q. In Juneau. ' Were you here in Juneau last winter?—A. All of the winter; 
yes, sir. That is, well, I was out about a month. 

Q Were you here in IMarch and April ?—A. Yes, sir. 

Q. Did you vote at the last city election?—A. No; I 

() Did vou register for the city election?—A. Yes, sir; I think I did 

6. You "registered for this city election held this spring?—A. Tfiiis spring? I 
did not register especially for that election. I think I was registered, though. 
That would apply for this year, would it not? 


was out of town, I 
last fall. 


54 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Q. Wlieii do you think you registered hist?—A. I think it was last fall, before 
the Territorial election. 

Q. When you voted at Charcoal Point, who did you vote for?—A. T voted 
for Mr. Sulzer. 

Now, tliat is the way it was done. These fellows Avould go down 
to the polls at Ketchikan to vote, get challenged, and then they would 
immediately get into Mahoney’s automobile and be run out at Char¬ 
coal Point to vote. 

But Heath, the next man, testified to substantially the same story 
exce])t that he had been in xVlaska, Juneau, very largely, for four or 
five years. The evidence showed that he had been in Xew Mexico, 
British Columbia, and had not been in Alaska for four or five years. 
He v^fis a single man, so far as we know, had no home and owned no 
property in Charcoal Point. 

iVnd his father, E. A. Heath (p. 32 of the brief) testified [read- 
ing] : 

Q. ]\Ir. Heath, you have a son, Bert, have you?—A. Yes. 

Q. Did he vote that day?—A. He did. 

Q. How long had Bert been in that precinct when he voted?—A. In July 
before. 

Q. Where did he come from?—A. From Seattle up there. 

Q. Where had he been for the previous four or five years?—A. In Mexico, 
Arizona, B. C. country. 

Q. British Columbia, you mean?—A. Yes; and Montana. 

Q. Had he resided in the Charcoal Point i)recinct prior to July, 1918, for 
four or five years previously?—A. No; he had been away. 

Q. Did he have any house or dwelling place of his own in that precinct?—A. 
Fie did not. 

Q. Or any other property?—A. He did not. 

Q. Mr. Heath, is it not true your family all supported Mr. Sulzer, did they 
not?—A. I don’t know; I did. 

Q. Well, don’t you know whether members of your family voted or talked in 
support of him?—A. I felt pretty well satisfied they were going to support him. 

Q. You talked with them frequently?—A. They talked that way. 

Q. Including Bert?—A. Yes. 

Q. Have you any doulits that all did vote for him?—A. I am pretty well 
satisfied they did; all my sons and daughters, excepting one; I doubt whether 
INIr. Lloyd and his wife did. 

Q. You don’t think Mr. Lloyd did?—A. I think not. 

Q. But you think all the rest of your family that did vote voted for Mr. 
Sulzer, including Bert?—A. Yes. 

And he had no property in Ketchikan and owned no property in 
Charcoal Point or anywhere else. His father. Democratic judge of 
election at Charcoal Point precinct, testifies, on page 32 [reading] : 

Q. Mr. Heath, you have a son Bert, have you?—A. Y^es. 

Q. How long had Bert been in that precinct when he voted?—A. In July before. 

(y Where did he come from?—A. From Seattle up there. 

(y Where had he been for the previous four or five years?—A. In Mexico, 
Arizona, B. C. country. 

Cy British Columbia, you mean?—A. Yes; and Montana. 

Q. Had he resided in the Charcoal Point precinct prior to July, 1918, for four 
or five years previously?—A. No; he had been away. 

Q. Did he have any house or dwelling place of his own in that precinct?—A. 
He did not. 

cy Dr any otliei- property?—A. He did not. 

cy Mr. Health, is it not tiaie your family all supported Mr. Sulzer, did they 
not?—A. I don’t know; I did. 

Q. W'ell, don’t you know whether members of your family voted or talked in 
support of him?—A. I felt pretty well satisfied they were going to support him. 

cy You talked with them frequently?—A. They talked that way. 

cy Including Bert?—A. Yes. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


55 


So that the evidence is quite clear as to that fellow. He had not 
resided in the territory of Alaska for four or five years. He had no 
home of his own, and his father testifies very frankly about the 
matter. 

Mr. O’Connor. Did you get his deposition? 

Mr. WicKERSiiAM. No, he got out of the country. He got on the 
boat and skipped out, and that was the end of him. 

Mr. O’Connor. Is that in the record ? 

Mr. WicKERSHAM. Why, I think it is, but I am not sure about it. 
Now% J. C. Cochran, a lighthouse keeper, had at one time resided in 
the town of Ketchikan. He had no family, no home, no property 
of any kind. This is all shown in the record. But about six months 
prior to this time he had been appointed lighthouse keeper at Lin¬ 
coln Rock, in Wrangell precinct. He had been gone from Ketchikan 
some six or nine months. He had made some pretense of having re¬ 
sided in Ketchikan prior to that date and he made some attempt to 
vote in Ketchikan, or offered to vote; his vote was refused. Then he, 
too, was taken in this automobile with Sulzer, and he voted out at 
Charcoal Point precinct. 

The Chairman. In what precinct is this lighthouse? 

Mr. WicKERSHAM. This lighthouse is in the Rainbow precinct. 

Mr. Elliott. Was he a Federal employee? 

Mr. WicKERSHAM. No; lighthouse keeper. 

Mr. Elliott. Would he then not be a Federal employee? That 
position would make him a Federal employee. 

Mr. Hudspeth. You say that he admitted that he voted for Sulzer. 
Who did he admit that to ? 

Mr. WicKERSHAM. He admitted that to this witness here. 

Mr. Hudspeth. You know these things, but it is very important 
that this committee knows, as we have to pass on this question. 

Mr. WicKERSHAM. This says, “ He went in the automobile with 
Sulzer,” but I thought there was an admission that he voted for 
Sulzer. 

Mr. Chindblom. After being challenged and refused a vote at 
Ketchikan, where he had not resided for months—some months, as I 
understand it—he was taken to Charcoal Point precinct by Mahoney 
in an automobile. Now, is the evidence of that fact in the statement of 
tne automobile driver? 

Mr. WicKERSHAM. On, yes; the evidence is clear on that point. 

The Chairman. Did he testify ? 

Mr. WicKERSHAM. No; he was gone, of course; he was out of the 
country. I will refer to that again. There is, I think, some testimony 
in here to the effect that he made an admission that he voted for 
Sulzer, but I can not find it just at this moment. Now, the next 
illegal voter is a tailor. We took this evidence. Of course, you know 
how we took the evidence. The testimony of a lot of witnesses was 
taken in a hurry and we skipped that man’s name. His name is not 
given here in this brief, but all the facts are given, except his name. 
On page 33 of this brief Althouse testifies with respect to him: 

There were three besides Sulzer ; one of them was that tailor and the other man 
1 mentioned here. 

Q. Ooclirane?:—A. Cochran. And that other man ,he was turned down. 

Q. He wasn’t permitted to vote?—A. No; he did not vote. 

Q. Why didn’t he vote?—A. He wouldn’t take the oath. 


56 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Q. Do you know where that tailor was from? A.—He was from Seattle; 
naturalized in Seattle. 

Q. Did he live in the Charcoal Point precinct? A. I never saw him only 
around Ketchikan ; I don’t know where he sleeps and eats; I never saw the man 
in Charcoal Point precinct. 

Q. Were you well acquainted out there?—A. Around back and forth every 
day. 

Q. And knew the people?—A. Yes, sir. 

Q. Did he reside there?—A. No, sir. 

Althouse testified that both Nix and the tailor voted (see p. 137, 
record) : 

Q. How many challenges were sustained against people Mahoney brought 
there?—^A. I am not clear; only those two—Indian and the tailor. 

Q. But as to the Indian, the challenge was not sustained; he was allowed to 
vote?—A. Yes; and the tailor also. 

^Ir. Elliott. Those were the only two challenges sustained in the 
town ? 

Mr. MTckersham. Apparently. Now, Samuel S. Kincaid and his 
wife are the next two witnesses. They were on the witness stand, and 
they admitted that they voted for Sulzer and all that sort of thing. 
So there is no question about those. Those are the votes in the Char¬ 
coal Point precinct that we knew about, that we got testimony about, 
but there were many more. We were satisfied from all the facts and 
circumstances, but we could not get their names. They were brought 
in there and voted and went out again, and that Avas the end of it. 
We could not find them. 

Mr. O’Connor. Have you the poll list of those who voted? 

Mr. AYickersham. Yes; their names are written down there, but the 
people are gone. Now, then, turn to Ketchikan. There were some 
illegal votes cast in Ketchikan. Forest J. Hunt, judge of election, 
testified, at page 84, record [reading] : 

Q. Now, on the morning of the election of November 5, 1918, was there a 
group of persons who voted here very early?—A. Some were waiting when we 
opened the polls. 

Q. Dudley Allen and his wife?—A. I think Dudley Allen and his wife and 
William Semar and his Avife. 

Q. And Gus Gillis?—A. I dno’t know. They voted early. 

Q. Who is Dudley Allen?—A. He is a traveling man. 

Q. Is he a commercial traveling man?—A. Yes. 

Q. Where does he reside?—A. Juneau. 

Q. Did he reside in this city?—A. No. 

Q. Had he been here 30 days prior to that election as a resident of this 
precinct?—A. No. 

Q. Nor his wife either?—A. I don’t think so. 

Q. Have you made inquiries since?—A. General inquiries here, and that they 
were simply here on business; she was making a trip with him for the first time. 

Q. And they were staying at the hotel?—A. I believe so. 

Q. You don’t know, or do you know, whether they were residents of this 
precinct?—A. I know they were not residents of this precinct. 

Q. What about Gus Gillis and his wife?—A. He is not a resident, and never 
has been. 

Q. Had he any home here?—A. No. 

Q. Had he been a resident prior to that time?—A. No; not that I know of. 

Q. Where do you understand he resided?—A. Juneau. 

Q. Had either of them or any of them been in this precinct 30 days prior to 
the date of election?—A. No; they had not. 

Q. What about William Semar?—A. He was a resident of Ketchikan, but 
he had sold out his residence here about two years prior to that election, and 
he was interested in a cannery out at Sitka. 

Q. Did he have any residence here at that time?—A. No. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 57 


Q. How long prior to that time had he been a resident of here?—A. In the 
neighborhood of two years. 

Q. They were in this early group that voted?—A. Yes. 

Q. Did he have any home here or place of residence?—A. No Iionie. 

Q. How long had they been here prior to the date of election?—A. A few 
days. 

Q. Not 30 days?—A. No. 

Q. Had any of tliese people been in the precinct 30 days prior to the date of 
election?—A. No, sir. 

Q. What do you know about the political partisanship of Dudley Allen and 
Gus Gillis and his wife?—A. I can’t testify as to that. 

Q. Were they known to be Republicans or Democrats?—A. The general re¬ 
port was that they were Sulzer supporters; they came in here with Sulzer 
supporters. 

Q. Who came in witli them?—A. William Strong and his wife were here and 
William Semar and his son-in-law. They were Sulzer partisans. 

Q. So far as you know, then, they were supporters of ]Mr. Sulzer and sup¬ 
porters of the Democratic ticket?—A. I never heard them accused of any¬ 
thing else. 

Q. How long had the Allens and the Gillises been in Ketchikan at that 
time?—A. I don’t know. 

Q. Three or four days?—A. Might have been here a week, or something like 
that. I do not know. They stopped at the Stedman Hotel. 

Q. Now, what was Semar’s business?—A. He was interested in a cannery, 
in charge of a cannery out at Sitka. 

Q. Does he reside out there during the year?—A. Yes. 

Q. Does he live in Seattle?—A. I don’t know whether he lived in Seattle or 
not. 

Q. They didn’t have a residence here?—A. No. 

Now, then, that is the testimony of the election officer in charge 
of the election. Then we take up Dudley G. Allen himself. Dudley 
G. Allen resided in Seattle, but claimed to reside in Juneau. He 
was called as a witness, and his deposition will be found at pages 150 
and 152 of the record of depositions. He admitted that he re¬ 
sided in Juneau but voted in Ketchikan on November 5, 1918, and, 
although he ‘‘fussed” about it a good deal, to save his face, he 
admitted, on page 152, record, “ I voted for Sulzer.” Mrs. Dudley 
G. Allen, his wife, did the same thing. They were just traveling. The 
boat got in there that morning early, half past 7 or 8 o’clock. They 
were on the boat going through from Juneau to Seattle. When they 
got off the boat they were met by the deputy marshal, who took 
them on up to the polls, and they voted and went to Seattle. The 
record shows all that. It is perfectly clear. . , 

Mr. CiiiNDBLOM. What does it show about Gus Gillis and his wife? 

Mr. WiCKERSHAM. The record upon that got somewhat mixed up. 
Gus Gillis is a traveling man also. Gus Gillis and his wife, they 
were there and voted, but when we took the depositions at Juneau 
I got the matter mixed up, and I said to Mr. Grigsby, who was taking 
the depositions, that this matter about Gus Gillis had gotten mixed 
up and I substantially made an admission in the record that Gus 
Gillis had not voted at Ketchikan. Now, as a matter of fact, there 
are two men—Gus Gillis and Gus Gelles. Gus Gillis lives in Juneau, 
but Gus Gillis and Gus Gelles are two different men altogether. As 
a matter of fact, Gillis and his wife voted illegally. 

Mr. Elliott. AVhere do they live? 

The Ciiaiilaian. Does the evidence show where he lives ? 

Mr WiCKERSHA^^i. Probably not. I have read the evidence of the 
election officer, but I probably got mixed up on it myself, and I am 
afraid I got jobbed. 


58 WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Mr. Chindblom. I would like to know if there is any statement 
as to how they voted, no matter where they lived. 

Mr. WiCKERSHAM. He did not call Gus Gillis on the witness stand 
for that reason. I got balled up between Gus Gillis and Gus Gelles. 
I am not sure about it yet. 

Mr. Chindblom. How about AVilliam Semar? 

Mr. WiCKERSHAM. The record shows that he was brought in by 
Sulzer supporters and Ave assumed that he voted for Sulzer. 

Mr. O’Connor. Just a moment, about this Gus Gillis—one is 
spelled ‘‘ Gillis,” and the other “ es ” ? 

Mr. MTckersham. No; one is sjielled Gillis and the other Gelles. 
Here is a letter from him to me, which shows very clearly that I 
was jobbed, but I assume that I committed m 3 ^self there. Now, with 
regard to Chapman, page 37. [Keading:] 

Q. Do you know a man by tlie name of W. Chapman?—A, Yes. 

Q. Who is he?—A. Superintendent for the- 

Mr. Elliott (interposing). Just a moment, please. Is this the 
man you claim voted for Sulzer? 

Mr. WiCKERSHAM. No; he voted for me. He lives in Juneau. 

Mr. Elliott. Where does the other man live? 

Mr. WiCKERSHAM. I Understand in Juneau also, but I do not 
know. I am frank to say- 

Mr. Elliott (interposing). Where does this man vote? 

Mr. WiCKERSHAM. He Amted in Juneau, if he A^oted at all. I may 
say to the committee noAv that I probably committed myself as to 
that vote of Gus Gillis and his wife, and I am probably out on that, 
because I stated the situation to Mr. Grigsby, and he probably did 
not knoAv any more about it than I did. 

Mr. Elliott. Where is this evidence that there is any Gus Gillis 
liaAong voted in Ketchikan? 

Mr. WiCKERSHAM. I have just been reading that—the evidence of 
Forest J. Hunt. 

Mr. Elliott. The election registers are here? 

Mr. WiCKERSHAM. I think they are here, but I may be mistaken 
as to that. 

Mr. Elliott. Let me read this just a moment: “And Gus Gillis?— 
A. I don’t know. They voted early.” He was asked whether Gus 
Gillis voted or not, and he said they voted early. 

Mr. O’Connor. He probably means they both voted. He did not 
commit himself on the proposition that Gillis did not vote. He 
does commit himself on the proposition that Gillis did not live 
there. 

Mr. WiCKERSHAM. This is so muddled up that I do not know 
whether Gus Gillis voted or not. 

Mr. Hudspeth. We can determine it from the polling list. 

Mr. WicicERSHAM. Now, Chapman, page 37. [Heading:] 

Q. Do you know a man by the name of W. Chapman?—A. Yes. 

Q. Who is he?—A. Superintendent for the Salt Chuck Mining Co., near 
Kasaaii post office. 

Q. Do you ki ow whether he voted here that day?—A. He did. 

Q. Did he have any residence here?—A. I don’t consider so. 

Q. He was challenged?—A. Yes. 

Q. AVhat became of his challenge?—A. He swore in his vote. 




WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


59 


Q. Do you know where his residence was?—A. I think he could claim a resi- 
<leuce out to the mine; I understand he had a house built out there at the mine 
at Kasaan. 

Q. Is that ill the Ketchikan precinct?—A. No. 

Q. Who challeipaed him?—A. Boh Oliver. I think. 

Q. When he was challenged was there any effort or not to make him till out 
an oath?—A. H. C. Strong urged him to fill out mu oath. 

Q. And was Mv. Strong a supporter of Mr. Sulzer?—A. He was, I think. 

Q. Did Mr. Chapman have a wife here in the hotel at that time?—A. He did. 

Q. M hat was she doing here?—A. She was said to he here for medical treat¬ 
ment ; she wasn’t well. 

Q. But his home was over at the mii.dng claim; they had a residence over 
there?—A. I understand the company furnished a house, just a residence for the 
superintendent, there. 

Q. Have you any information how Mi-. C’hapman voted?—A. Nothing further 
than the party he came in with. 

Q. And from your information you think he voted for Mr. Sulzer?—A. I am 
satisfied. 

Mr. Chindblo^i. Do you claim that that is evidence that he did not 
live in Ketchikan, that you just read ? 

Mr. AV iCKEKSHAM. AYell, I think so. 

Mr. Chindblom (reading) : 

Q. Do you know a man by the name of W. Chapman?—A. Yes. 

Q. Who is he?—A. Superintendent for the Lso and so]. 

Q. Do you know whether he voted here that day?—A. He did. 

Q. Did he have ary residence here?—A. I don’t consider so. 

Q. He was challenger?—A. Yes. 

(}. ^^'hat became of his challenge?—A. He swore in his vote. 

Q.' Do you know where his residence was?—A. I think he could claim a 
resident out to the mine; I understood he had a house built out there at the 
mine at Kasaan. 

That is all hearsay evidence as to his residence. 

Mr. MTcKERSHA^vr. He knew that he didn’t live in Ketchikan. 

Mr. Chindblom. He said, I don’t consider so.” That was a 
matter of opinion. 

j\Ir. MTckeksiia:m. But you see it was the election officer, and this 
man voted by reason of taking a challenged oath. That was the way 
he came to vote. He was challenged, and the challenge Avas sus¬ 
tained against him, because he Avas not a resident, and then he took a 
challenged oath and voted. Xoav, then, Avith regard to Steve Regan, 
deputy United States district attorney. Hunt, the Republican judge 
of election in Ketchikan precinct, testified at page 85 of the record 
that Regan and his Avife voted at Ketchikan on November 5, 1918; 
that they claimed to reside on a homestead near Haines, Alaska, 
about 300 miles north of Ketchikan, in another precinct; that Regan 
Avas a Democrat, and naturally voted for Sulzer. Bob Oliver, at 
page 127 of the record, testified substantially the same; and, in addi¬ 
tion, disclosed that Mrs. Regan Avas challenged and took the chal¬ 
lenged oath before depositing her ballot. Regan Avas called by the 
contestee and his deposition Avill be found at pages 392 to 394 of 
the record. He says that he Avas appointed deputy United States 
district attorney January 24, 1918; that both he and his Avife resided 
in Ketchikan on NoA^ember 5, 1918, and voted for Sulzer. There is 
no question about this vote. On cross-examination he discloses that 
while his presence had been continuous at Ketchikan, his Avife’s visits 


60 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

there were infrecjiient and a Jong ways apart on account of the fact 
tliat she was residing on their liomestead claim near Haines. 
[Heading:] 

Q. What time did your wife {iiid children return from the homestead last 
season?—A. Rack to Ketchikan? 

Q. Yes.—A. Some time in Novemher, prior to the election, early in November, 
I could not tell just what time. 

Q. Could you state approximately how soon before election they returned?— 
A. Why, very soon before election; I could not say exactly. 

Q. Two or three days, something? like that?—A. Yes; two or three days,, 
something like that. 

Q. How long had they been away from Ketchikan at that time?—A. I could 
not state, I am sure. 

Q. Well, had your wife and— 

XoAv, wliy read all that? The facts are these: That this man 
Hegan was a deputy United States district attorney at Ketchil^an; 
that he had a homestead up at Haines upon wdiich he and his wife 
resided—at Haines, 300 miles away, and in another precinct entirely. 
They had to live there to maintain their residence, under the United 
States statute. In the meantime, Kegan himself, being an attorney, 
had been appointed deputy United States district attorney down at 
Ketchikan, and had come down there to look after his official duties. 
He rented a house there, and he lived in the house himself, while 
his wife and children lived in their home, in their own house, up on 
their homestead at Haines. 

Two days or three days before election his wife came down to 
Ketchikan and went down with him to vote, and she was challenged. 
I do not know whether he was or not, but she was, on the ground that 
she had not been in the precinct 30 days prior to election. He pre¬ 
pared a challenged oath for her, as I think the record shows, and 
she took that oath that she resided continuously^ in Ketchikan for 
30 days preceding the election date, and A’oted. Noav, the truth is 
that neither one of them, had the right to vote. Under the United 
States law their home was on the homestead; it is a homestead, and 
they could only hold their claim to it by actual residence upon it. 
They had to have an actual residence upon it and they Avere to live 
there in good faith as actual residents upon the ground. 

The Chairman. Hoav long does the laAV require a homesteader to 
liA^e upon the homestead? 

Mr. AVickersham. Three years, as I remember noAv, under the 
statute in Alaska, and they were residing there. 

Mr. Chindblom. Hoav long had they been there? 

Mr. AATckershaai. Oh, I don’t know. They had not proved up; 
that is all I know; the evidence shows that. 

Mr. Elliott. Mr. Regan testified that he had been there three 
years in 1917. 

Mr. AVickersham. AA'ell, that might be, but they had not proved 
up yet. So they Avere maintaining their residence there up to three 
days before the day of election, and Mr. Regan then claimed the 
right to vote at Ketchikan because his official duties Avere there. 
Noav, Mr. Regan Avas appointed to the office of deputy United States 
district attorney. In 1909 the United States Commissioner of the 
General Land Office issued instructions Avith respect to this particular 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


61 


class of cases, which will be found in Thirtv-seventh Land Decisions. 
449. [Leading:] 

[Instructions.] 


riECEIVp:RS AND REGISTERS, 

Vnifed states Land Offices. 


Department of the Interior, 

General Land Office, 
Waslihif/ton, I). C., Fehruar)/ J6, 1900. 


Oentle^ien : For many years it has been the practice of tlie department to 
permit a homestead entryman. wiio had estaldished residence upon his claim 
and afterwards had l)een elected or appointed to a Fedei'al, State, or county 
office, to be ^dLsent from Ids entry if required by his official duty, and to con¬ 
sider snch absence constructive residence upon Ids claim. This ridinji includes 
deinities and assistants in such offices. (Sec. 2, L. I)., 147; (5 L. I)., 668; 7 L. D., 
88; 9 L. D., 528, 525; 17 L. D., 195; 21 L. D., 155.) 

This privile.ire, whicli is-not a statutory rii>:ht hut rests solely upon depart¬ 
mental rulings, has led to snch grave abuse that objects of the homestead law 
have been to a great extent defended. Therefore tlie department has decided 
to discontinue the said practice in so far as it has been applied to persons ap- 
])ointed to office, and limit it to persons elected to office. All decisions and in¬ 
structions heretofore given not in harmony with this view are hereby over¬ 
ruled or modified in so far as the.v accredit such absence as residence to per¬ 
sons not elected to office. 

It is not intended, however, to disturb the status of persons who have acted 
under the rule heretofore prevailing, nor to deny the benefit of the rule to 
persons who, prior to March 1, 1909, shall have been appointed to such office. 
Persons having homestead entries, who enter upon public service in nonelectiv'e 
positions to which they were not appointed prior to above date, will be required 
to comply fully with all of the provisions of the homestead law just as other 
.settlers. 


Very respectfully, 
Approved. 


Fred Denni]tt, Comniisaioner. 
Frank Pierce, Acting Secreianj. 


Mr. Chindblom. Within what time after establishing their resi¬ 
dence thereon must they prove mi? 

Mr. WicKERSHAM. I think within three years. 

Mr. Chindblom. So, then, a man might have resided three years 
on his homestead and complied with the provisions in regard to 
residence, but if he did not prove ap, it is necessary that he continue 
residing there? 

Mr. Wickershajm. He has got to reside there until he proves up. 

Mr. Hudspeth. Even if he had been there more than three years ? 

Mr. AVickersham. Yes. 

The Chairman. AYas he residing on this homestead at the time 
of the appointment? 

Mr. AYickersham. Yes. 

The Chairman. Does the evidence show that? 

Mr. AA^ickersham. No; the evidence does not show that—T think it 
does not. I think the evidence does not show that, because he would 
have to reside there. Anyway, his testimony is here on page 38. 

Mr. O’Connor. As I understand it, his wife was there until a few 
days before election, then she came down to Ketchikan, and that he 
himself had been down in Ketchikan acting in the office of deputy 
United States district attorney. 

Mr. AYickersham. From some time about the 7th of March. 

Mr. O’Connor. AA^ould that appointment annul his homestead 
rights ? 


62 


WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. WiCKERSHAM. No; not if he lived there. The residence of the 
family upon the ground maintained his homestead • in good legal 
order. 

Mr. O’Connor. A man may himself leave the homestead and leave 
his wife and family there, and the homestead would still remain his 
legal residence. 

Mr. WiCKERSHAM. There is no provision in the homestead laws 
whereby a man may solemnly declare his residence at one place for 
the purpose of voting and at another place for the purpose of acquir¬ 
ing title to land. In the case of Hart v. McHugh (17 L. D., 176 
(177*)). McHugh is bound by his solemn declaration, fixing his 
residence at Spokane, and is estopped from setting up a residence 
elsewhere at that time. The authorities are all one way on that. jSo 
that Regan’s home when he voted on the 5th day of November, 1918, 
was in the Haines precinct, and the home of his wife was there; he 
had no right to vote anyAvhere except at this residence in the Haines 
precinct. 

Mr. O’Connor. Where had he registered? 

Mr. WiCKERSHAM. He didn't register anywhere until he voted in 
Ketchikan, and his wife had made this false oath that she had re¬ 
sided in that precinct 30 days immediately preceding the day of 
election, when, in fact, it was not true. There is plenty of evidence 
in the record on that. Now, those are the frauds in the Ketchikan 
precinct. Those are the ones that we were able to get testimony 
about. Now. there are individual frauds in southeastern Alaska. 
Mr. E. G. Morrisey, the secretary to Mr. Sulzer; Mr. Morrisey had 
resided in Fairbanks, but he had come on to Washington with Mr. 
Sulzer as private secretary, and when the election of 1918 came on 
he went out to Juneau to assist Mr. Sulzer in his campaign. 

I think it is fair to assume that if Mr. Morrisey was serving the 
Government here, under a legal appointment, he had the right to go 
back to his home in Fairbanks, where he had lived several years, 
and Avhere he came from. He came here to serve Mr. Sulzer as secre¬ 
tary, but he did not do that. He voted in the Juneau precinct. His 
evidence shows that he had a room at a hotel, and that he had had 
that room for more than 30 days, but all he had in the room was a 
lot of books relating to elections, and so on, while he was traveling 
around the country assisting Mr. Sulzer in his campaign; on elec¬ 
tion day he happened to be in Juneau, and went down to the polls 
and voted. He was challenged. His vote was illegal because he 
was not a resident of that precinct. He did have this room in the 
hotel while he Avas out in the precinct at A^arious places, but the room 
Avas only for the purpose of keeping boofe, and that is all he had in 
the room. 

Mr. Chindblom. Is there any evidence that there Avas a bed, or 
anything of that sort in the room? 

Mr. O'Connor. Was he a married man? 

Mr. WiCKERSHAM. No; he was not a married man. We have con¬ 
siderable testimony, and I think the testimony is clear that he had no 
right to A'Ote at all? 

The Chair^man. You mean he had no right to vote in that pre¬ 
cinct, or that he had no right to A’ote at all? 

Mr. WiCKERSHAM. No; he had a right to vote in Fairbanks, assum¬ 
ing under the statute that his residence Avas maintained in that pr^- 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. _63 

cinct. AA e have in this act of 1915 a clause Avhich reserves the right 
to j)eople of that kind. I Avill call it to vonr attention just for a 
second. 

Mr. CVCoNNOR. Legislative act of 1915 ? 

INIr. M icKERSHAM. A legislatiA^e act of 1915. 

Mr. OLonnor. I mean, an act of the legislature. 

Mr. WicKERSHAM. Yes; the one that I think is Amid, but there is 
a clause in here in Avhich it does reserve the right of that kind to 
some persons, and I think probably there might be some claim that 
he could Amte in Fairbanks under that clause. Here it is: 

Sec. 22. The clerk of the court sliall provide each polliiif; place with a book 
to he known as the “ Ue.ii:istration P>ook ” on the first page of whicli shall be 
printtHl the qualitications of the voters as follows: “ An.v person of the age 
of 21 A^ears or more who is a citizen of the TTnited Statks. who has lived in 

the Territory of Alaska one A'car and in the judicial diAdsion in which he or 

she offers to cast his or her vote 30 days immediatelA’ preceding such election, 
shall be entitled to Amte at all elections held therein : 'Provided, That all idiots, 
insane persons, and persons aaOio liaA^e been coiiAdcteil of an infamous crime 
are excluded from such right and privilege: And provided further, That no 
person shall be deemed to haA^e lost his residence bj" reason of his absence 

Avhile in the civil or military serAUce of the Territory, or the United States, 

nor Avhile a student at any institution of learning, nor Avhile kept a public 
charge at auA" poorhouse or an.A’ other asjdum, nor»Avhile confined in any 
public prison, nor Avhile engaged in navigation of the Avaters of this Territory, 
of the United States, or the high seas; absence from the Territory or said 
judicial division or city or tOAvn Avherein election is held, on business, Shall 
not affect the question of residence, provided he or she has not claimed such 
right elseAvhere. One of the said judges shall keep ssiid registration book, 
and before any voter shall receive his or her official ballot, he oi* she shall 
sign his or her name in said book, Avhich signature shall be a statement of 
said voter to the effect that he or she is qualified to vote under this act.” 

Noav, if he Avas aAvay in the civil service of the United States he 
probably had the right to Amte in Fairbanks. 

Mr. Chindblom. I am not a single man, but if I Avere a single 
man and I moved from one precinct to another and had a room 
there and there Avas evidence that there Avere books in that room, 
and there Avas no evidence that it Avas a room for residential pur¬ 
poses, and I had been a resident of the Territory for one year, and 
I presented myself to Amte, AAmuld you refuse me a vote? 

Mr. W iCKERSHAM. Well, if you had been in the precinct - 

Mr. Chindblom (interposing). I had a room in the precinct Avith 
a lot of books in there. 

Mr. WiCKERSHAM. Well, if that Avere all you had in there—a lot 
of books, I should say, no. 

Mr. Chindblom. There is evidence that there Avas a lot of books 
there, but that is not conclusive as to the bed. I am taking your 
Avord for that. 

Mr. AYickersham. There might be evidence that there Avas a bed 
there, I do not knoAv, but I don’t think there Avas. I am not sure 
about that. 

Mr. O’Connor. All these men, you claim, voted illegally because 
they voted in the precinct, a precinct in Avhich they had not resided 
for 30 days immediately preceding the date of election, but they 
did live Avithin the district? 

Mr. WiCKERSHAM. Flis district, or precinct, Avas in the fourth dis¬ 
trict, Avhile this Avas the first. 



64 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. O’Connor. If this statement is correct, then he violated the 
organic law and the territorial act also? 

Mr. WiCKERSHAM. There is no question about that. Now, on elec¬ 
tion day H. J. Raymond and his wife, S. Jacobsen and his wife, 
and J. R. McNeil—these five persons voted illegally in Baranof 
voting precinct while residents of Juneau on November 5, 1918. 
H. J. Raymond testified, on page 197, of the record [reading] : 

Q. State your full name.—A. Harry J, Kaymoiid. 

Q. Anti your place of residence?—A, .Juneau, Alaska. 

Q. How long: have you lived there?—A. I've been in Alaska 23 or 24 years. 
In .Tuneau about 16 or 17 years. 

Q. You are acquainted with Mrs. Harry ,1. Raymond?—A. Yes. 

Q. That is your wife?—A. Yes. 

(}. She has lived with you for ,-everal years last past?—A. Twenty-four 
years, steady. 

Q. Both of you lived here in .Juneau on the 5th of last November?—A. No. 
We were at Warm Springs on the 5th of last Nocember. 

Q. Where was your place of residence?—A. Well, our residence was in 
Juneau, but we were living on the boat on the 5th of November. 

Q. You and IMrs. Raymond and Mr. Selmar Jacobsen and Mrs. Selinar .Jacob¬ 
sen and Mr. J. R. McNeil, otherwise known as Bob McNeil, left Juneau for 
Warm Sp]*ings on the 10th of October, 1918?—A. Yes. 

Q. On the boat Constance"' —A. Yes; on the boat Constance. 

Q. And you lived on that boat on that trip?—A. Yes. 

Q. And returned at what time?—A. We got back here about the 13th or 14th 
November, but I had been living on the boat since May—May 10. 

Now, Raymond testified that he and his wife voted for Sulzer on 
November 5, 1918, at Baranof precinct, though their actual residence 
was in eJuneau and had been for more than 20 years; they had only 
been in that precinct since October 13, only 23 days, and that as 
mere sojourners. 

J. R. McNeil’s testimony, on pages 195 and 196 of the record, is 
perfectly frank. He testified that he had been a resident of Juneau 
since 1913; that on the 13th day of October, in company with the 
Raymonds and the Jacobsens he went into Warm Springs Bay, 
where the election for Baranof voting precinct was held on Novem¬ 
ber 5, 1918. He testified that he went there for his health, to get 
the benefit of the hot springs located there. He testified: “I voted 
for Sulzer.” 

The contestant was not able to get the Jacobsens to obey the sub¬ 
poena and testify. But the clerk of the town of »Tuneau produced 
the town records, which proved conclusively they were actual bona 
fide residents of Juneau during the time they remained at Waiun 
Springs Bay in October and November, 1918, for the benefit of the 
hot springs. 

Both the Jacobsens made an affidavit before the toAvn clerk of 
Juneau on March 28, 1919, for the purpose of procuring registra¬ 
tion as voters in Juneau at the following city election, and their 
application was as follows [reading] : 

A. B. Cole, 

Registration Officer, Jiineav. Alaska. 

I hereby make application to be registered as a (pialified elector to vote at 
the regular April, 1919, election, to be held in the city of Juneau, Territory of 
Alaska, on April 1, 1919, and to prove my qualifications, I hereby make* the 
following affidavit. 


Selmer Jacobsen, Applicant. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


65 


Mr. Elliott. Excuse me, Judge, you said tliat tTacobsen and his 
wife, those five names that you mentioned, voted in precincts other 
than their regular precincts ? 

Mr. WiCKERSHAM. Yes; they voted in precincts other than their 
legular precincts, all five of them. There is no question about that. 
Their votes would not have been illegal if they hadn’t voted in pre¬ 
cincts that they had not lived in for 30 days immediately preceding 
the day of election. So, I do not need to read that evidence. 

Now, Joseph A. Snow gives substantially the same evidence. 

Mr. Chindblom. You have the evidence that the other three voted 
for Sulzer—McNeil and Jacobsen and Mrs. Jacobsen? 

Mr. WiCKERSHAM. That he had resided in the town of Juneau for 
six months prior to- 

Mr. Chindblom (interposing). I mean on the question of whom 
they voted for. 

Mr. WiCKERSHAM. They admitted for whom they voted. There 
is a statement in here by some person to whom they told it, and 
then we proved it in this way—on the refusal of the Jacobsens to 
appear and testify we obtained the testimony of Edward Olsen and 
Joseph McComb, whose depositions appear on page 248 of •the 
record. They stated that they voted for Wickersham, four of them. 

The Chairman. Does the record show that only four votes were 
cast? 

Mr. Wickersham. Yes; and then we have their depositions, regu¬ 
lar depositions of those four persons who voted for Wickersham in 
that precinct. 

Mr. Chindblom. At Warm Springs—and that was in the Baranof 
precinct ? 

Mr. Wickersham. Yes; in the Baranof precinct. 

Mr. Chindblom. Now you come to Snow. 

Mr. Wickersham. Snow says he voted for Sulzer. Snow is a 
well-known public man there. He has held an office there and is 
well known. He was on the boat, the steamer Catherine Z>, coming 
southward, and he went into voting precinct Kake on election day 
and went up to the polls and voted; then he got on the boat and 
went on to Juneau. 

Mr. O’Connor. Was the Territorial act passed with reference to 
the exercise of the political act for the purpose of giving greater op¬ 
portunity to voters who would otherwise be denied under the organic 
law of Congress? 

Mr. Wickersham. Well I think there is some claim of that kind, 
yes. 

Mr. O’Connor. Was that the real purpose? 

Mr. Wickersham. I don’t know whether that was the real pur¬ 
pose. 

Mr. O’Connor. I understood you to say that sometimes a voter 
may be 300 miles away from his precinct. 

Mr. Wickersham. I was 600 miles away and I didn’t get a vote on 
election day; Mr. Grigsby says that he didn’t vote on election day, 
and I have no doubt that that is true. Now, it is getting late, gentle¬ 
men, but there are one or two things I want to call to the attention of 
the committee right at this point. One of them is with reference to 

181744—20-5 



66 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. (Trigsby’s brief. Mr. Grigsby asked me a while ago if what I 
was then referring^ to was in the record, and I had to smile at him, 
because he has more things in his brief that are not in the record 
than he has things in the brief w^hich are in the record. I want to 
call attention to one of them. He has got a lambasting attack on me 
in here because I have said something about Commissioner Riggs. 
Page 15 of his brief [reading] : • 

In an attack upon the Secretary of the Interior and the Alaska Engineering 
Commission the contestant commented upon the occurrence as follows: Ex¬ 
tracts from open letter written by .Tames Wickersham to Secretary of the 
Interior Franklin K. Lane, dated .lannary 8, 1919. “ And when Commissioner 

Riggs procured Renee Coudert Riggs, his wife, to vote at that election, and 
Disbursing Officer Crjimer procured Florence E, Cramer, his wife, to vote at 
the same polls, both they and their wives were guilty of the criminal act or 
acts denounced in the congressional election law, and ought to he punished 
as if they were plain common people, instead of securing immunity because 
they were high officials in the Alaska Engineering Commission, and more re¬ 
cently the governor, and secretary to the governor of Alaska.” 

Then he has quoted the law: 

Section 27, Disqualified persons i-oting .—If any person, knowing that he does 
not possess the legal qualitications of a voter, at any election authorized by law 
to be held in this Territory for any office whatever, shall vote at such election, 
such^erson shall be guilty of a felony. Both of these women were disqualified 
and they and their husband knew of their lack of qualifications when they pro¬ 
cured them to vote—they were each guilty of a crime if they so voted. 

The official records of the election in the Neana precinct show that Cramer and 
wife and Riggs and wife voted at the same polling place and signed the same 
registration list; for the purpose of this communication, the evidence is convinc¬ 
ing that all were guilty of the crimes denounced in both the congressional and 
ten-itorial election laws. A grand juror informed me that body attempted to in¬ 
dict Riggs for these alleged violations of the congressional election laws but 
was prevented from doing so by the court officials at Fairbanks. 

The court officials at Fairbanks who prevented such an outrage are to be con¬ 
gratulated. The facts were these: Mrs. Riggs and Mrs. Cramer arrived in 
Alaska about six months prior to election and on advice of District Attorney 
Roth that their husband’s residences were their own, voted at the election. 
AVhether or not this advice was sound is not the question. The question is, is 
such a vicious attack on the part of contestant excusable. What character of 
man is it that will brand respectable citizens as guilty of felonies, for these 
accusations are renewed against Gov. Riggs in this record, for the sake of bolster¬ 
ing up a flimsy charge of unfairness by the governor as a member of the can¬ 
vassing board. 

Governor Riggs is a native of Maryland; his grandfather was a highly re¬ 
spected citizen of Washington, one of the founders of the Riggs National Bank. 
The governor himself lived here many years and is well ami favorably known. 
His official career has been reviewed. His wife, Renee Coudert Riggs, is the 
daughter of the late Frederick R. Coudert of New Y"ork City and a lawyer of 
national and international reputation, honored by the bar of the country. 

INIr. and Mrs. Cramer were both born in Maryland and are well and favorably 
known. 

The criminal tendencies of these men and women certainly were not the result 
of hereditary or early environment. No whisper was ever breathed against 
the names of these women until the malign influence of the Alaska atmosphere 
led them to vote against the contestant, if they did so, who now asks that they 
go down in history as unconvicted criminals by a decision of the House of 
Representatives in order that he may prevail in his contest. 

Well, novy^, there is not a word in my case about that anywhere. 
There is no charge in my original notice of contest about that matter. 
There is not a Avord in my complaint about it, not a word. 
jMr. Grigsby. There is in your brief, Mr. Wickersham. 

Mr. Wickersham. There is not. I do not mention Mrs. Cramer 
anywhere, nor Mr. Riggs’ name, or this illegal looting except as it is 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 67 


based upon the testimony of witnesses at Fairbanks. I did not put it 
in my brief, and I did not put it in my original charges. Because 
why ? It is outlawed. It was in 1916, and the statute of limitations 
has run against it. Of course, I did not put it in this brief, because 
it could not come before this committee, and the charge is made that 
I am doing all this for the outrageous purpose of ruining the reputa¬ 
tion of those whom I have not mentioned. Well, now, that is in Mr. 
Grigsby’s brief and I have no chance to answer it except as I answer 
it here on this floor; and I just Avant to say that it is admitted to be 
true, it is admitted by this brief, that these people voted illegally. 
He iDrings them in here himself, admits that they violated the law, 
and then roasts the dickens out of me on account of it. He drags 
these tAvo good ladies in here by the hair of the head and holds them 
up as horrible examples and makes a record against them himself; 
admits that it is true, and then abuses me for it. 

Mr. Chindblom. Outside of that. Judge, just on the legal point, 
is not the Avife’s domicile where her husband resides? 

Mr. WiCKERSHAM. Sometimes it is, and sometimes it is the other 
way. 

]Mr. Chindblom. I have always understood that the Avife’s domicile 
and wife’s citizenship follow that of her husband. If the husband 
were domiciled and had his residence in Alaska for a period of time, 
is there any decision that his Avife’s domicile may not be there ? 

Mr. O’Connor. The domicile is the real test of the residence.^ 
There is where you Amte—at your domicile. 

Mr. IVicKERSHAM. Here is the situation, gentlemen: If you will 
examine the city directory for the District of Columbia you Avill find 
that in 1909, at page 1060, Thomas Riggs, jr., lived at 2111 'S Street 
NW., and coming down from year to year, you Avill find that he lived 
at 2106 F street NW., until 1912. The directory shows his residence 
there at that time. In 1913 something happened; he got married. 

Mr. O’Connor. Something did happen! 

Mr. WiCKERSHAM. And in 1914 his home was at 1731 Twenty-first 
Street NW., in this city; and at page 1074, of the 1915 city directory, 
he is listed as a “ topographer. Geological Survey,” and then later he 
is shown as “ civil engineer, residing at 1731 Twenty-first Street 
NW., in the city of Washington. Now, he liA^ed there with his wife. 
They both lived there in the city of Washington; and, more than that, 
all this time they Avere doing business as husband and wife, and a 
child was born to them on March 26, 1914. The birth of the child is 
reported on March 26, 1914; the father’s full name, Thomas Riggs, 
jr., residence 1731 Twenty-first Street NW., color, white, age last 
birthday, 40 years; birth place, Maryland; occupation, civil en¬ 
gineer. Maiden name of wife, Renee Coudert, age 39 years; birth 
place. New Jersey; occupation, domestic. Here is all the information, 
certificate of birth, under seal of the court, etc. 

Mr. Grigsby. There is no dispute about that. 

Mr. WiCKERSHAM. There is a dispute about it. They resided here 
at 1731 Twenty-first Street, NW., in the city of Washington. 

Mr. O’Connor. Did they vote in the 1918 election ? 

Mr. WiCKERSHAM. Yes; and they lived here in May, 1918. Mr. 
Riggs would go to Alaska in the summer time, and would come out in 
the fall. That is what he always did. 


68 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


The Chairman. He was commissioner, was he not, of the Alaska 
Kailroad? 

Mr. WiCKEKSHAM. Yes; and under the law his residence was re¬ 
served to him here in the city of Washington, Avliere his wife and 
children live. Another child was born December 25, 1915. Here is 
the report of the birth certificate, and all that sort of thing. 

The Chairman. When did they move from here ? 

Mr. Wickersham. In May, 1918—it is admitted here in the brief— 
about 6 months prior to the election. 

The Chairman. You claim that her vote was illegal? 

Mr. Wickersham, And his, too. 

Mr. Grigsby. In that connection, he did not acquire a residence in 
Alaska because he was not there a year. 

Mr. AVickersham. He Avent backAA^ards and forAvards all these 
years and his home AAaas here. And Avhen he Avent out there and voted 
that day, and his Avife, they both Amted illegally, as Mr. Grigsby says 
here. Idiey had only been there six months. That is admitted. 

Noav, Avith regard to this other felloAv, Cramer, he married this 
other girl. I am not saying anything about that. Grigsby dragged 
them in here himself. Here is tlie marriage license, issued to George 
Fenton Cramer, of AA^ashington, I). C., and Florence A^ance, of the 
same place, on the 11th of February, 1916. They liaA-e this Avrong— 
it is not 1918. 

Mr. Hudspeth. Then Ave liaA^e nothing to do with that? 

Mr. AATckersham. No. 

The Chairman. Then, aside from your self-defense, A\diat is that 
brought in here for ? 

Mr. AA^ickersham. It is brought in for the purpose of ansAvering 
this attack on me. There is another matter in the record to which I 
want to call the committee’s attention. Harry Shutts, page 76 of Mr. 
Grigsby’s brief: 

‘‘In the hearings before the Connnittee on Elections, No. 3, in this 
matter, on page 42 of the printed record thereof, is the affidaAut of 
Harry Shutts, as folloAvs. [Reading:] 

United States of America, 

Territory of Alaska, third division, ss: 

Harry Sluitts, bcins first duly sworn, upon his oath says: I am at present a 
sergeant, first class, Motor Transport Corps, United States Army, and stationed 
at Valdez, Alaska; that in the fall of the year 1914 I was a corporal in the 
Signal Corps of the United States, stationed at Fairbanks, Alaska; that some 
time during the fall of 1914 and a short time before the election held in the 
month of November, 1914, for the purpose of electing a Delegate to Congress 
from Alaska, I had a conversation with Mr. James AVickersham, then a candi¬ 
date for election as Delegate to Congress from Alaska; during said conversation 
I asked Mr. AVickersham if I was legally entitled to vote at the coming election 
for Delegate to Congress on account of my being an enlisted man in the United 
States Army. Air. AVickersham stated that the fact that I was an enlisted 
man in the United States Army did not disqualify me from voting; that I 
certainly Avas entitled to vote if I had been in Alaska for one year; and that 
it Avas my duty as a citizen to vote. (Signed) Harry Shutts. Subscribed and 
SAVorn to before me this 2d day of June, 1919. (Signed) Frank J. Hayes, 
notary public for Alaska. Aly commission expires Alay 19, 1921. 

Now, Avhen Ave had the resolution up for hearing before this com¬ 
mittee Mr. Grigsby read that affidavit. That Avas the first time I 
ever heard it. I did not know there Avas such an affidavit in exist¬ 
ence until he read it at that time. It Avas read and I suppose taken 


69 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

into the record here, but Harry Shntts was never called as a witness 
in this case. This affidavit was never ottered in any deposition in 
this case and the only place that it appears in this record anywhere 
IS in this statement before this committee on that resolution and in 
this brief. And he thinks now that I ought to be bound by an affi¬ 
davit like that, an affidavit of that kind. I think I ought not, and 
thinking that I ought not, I want to make an affidavit in answer to 
it, and here is my affidavit, which is just as good as Harry Shutts’s, 
and is just as illegal as Harry Shutts’s, and you have no more busi¬ 
ness to hear it than you have to hear Harry Shutts’s; but having 
heard Shutts’s affidavit, I think you ought to hear mine, which is 
very short [reading] : 

United States of Amekica, 

District of Columhia, ss: 

.Tames Wickersham, beins duly sworn, (lei>oses and says: That affiant first 
heard ahont the affidavit of Harry Shntts, printed on page 42 of the committee’s 
hearings, on .Inly 12, 1919, when it was so read to the committee hy Mr. Grigsby; 
that prior to that date and prior to the date of the affidavit, at Valdez, Alaska, 
this affiant made special effort through his attorneys to secure a truthful and 
full deposition from said Shntts in relation to his fraudulent and illegal vote at 
said election will more full appear from the record of that effort found on 
pages 225-228 of the record of depositions in this case; but said Shutts refused 
to be swmrn or testify and never has given any deposition in this case, under 
oath, on notice and cross-examination. That affiant says it is not true, but is 
false and untrue, that he told said Shutts in 1914, or at any other time, that 
said Shutts was a qualified elector in Alaska, being then a nonresident enlisted 
soldier from another State. If affiant ever had any conversation with said 
Shutts about that matter, he has not correctly given the purport of affiant’s 
statements in that affidavit. James Wickersham, 

Subscribed and sworn to before me this 22d day of ^March, 1920. 

M. W. Pickering, 

Notary Ptihlie in and for the District of Columhia. 

That affidavit is put in here with no more authority than he put 
the other affidavit in here—not a bit—but Shutts’s affidavit is put in, 
and then it is followed by a long string of stuff saying that I advised 
these soldiers to vote, and then saying that I am bound by this situa¬ 
tion. Xow, I want to call your attention to the effort that was made 
to get this fellow, Harry Shutts, to testify, pages 225-228 of this 
record, beginning on page 227 of the record. At Valdez, Alaska, in 
May, I went out there to take testimony after Mr. Sulzer’s death, 
because under the statute I had to take my testimony within 90 days. 
Mr. Sulzer was dead; I could not give him any notice, and I had to 
proceed without him. What I did then, with respect to Shutts and 
these soldiers, was that I had a subpoena issued by a notary public 
and served through a United States marshal, requiring all these 
.soldiers to appear before a notary public and have their depositions 
taken; they all did appear, and Mr. Grigsby’s present attorney and 
agent, Mr. Dimond, appeared with them as their attorney. When 
we undertook to take their testimony Mr. Dimond objected; in fact, 
made a lot of objections. On page 228 of this record the notary 
public proceeded with the matter. The notary public said [read- 
ing]: 

You may call them. 


70 


WICKERSHAM VS. SULZER (DECEASED) Al^J) GRIGSBY. 


Mr. Reed then called theni, and the record is as follows: 

]\Ir. Heed. Mr. Harry Shiitts; is he present? 

I'Mr. Shntts rises. 1 

Mr. Himond. Sit still, Mr. Shntts. I advise .von gentlemen not to answer 
to your names at all and not to he sworn and not tO' give any testimony. 

Mr. Keeu. Do yon refuse to he sworn and testify in this matter? 

INIr. SThutts.-INo response.l 

Mr. Reed. Do yon want the record to show that yon refuse, or that you 
decline to answer that question? [No response.] 

'Mr. Reed. Emil Lains; is he present? 

IMr. Dimond. Mr. Ijains is present. 

IMr. Reed. Mr. Lains, do yon refuse to he sworn and testify? [No response.] 

Mr. Reed. Is Mr. Kott itresent? 

IMr. Dtmond. He is present 

IMr. Reed. Do yon refuse to he sworn and testify? [No response.] 

Mr. Reed. Charles A. Agnetti? 

IMr. Dimond. Mr. Agnetti is also present. 

IMr. Reed. Do you refuse to he sworn and testify? [No response.] 

Now, Shntts wotdd have testified if it had not been for Mr. Grigs¬ 
by’s attorney. Mr. Grigsby drags that entire thing in here when it 
has not been covered by depositions, and it is not here in any Avay, 
shape, or manner except as I have told you. This affidavit of Shntts 
was taken on the 2d da}^ of June, 1919, before Frank J. Hayes, 
notary public, one of Mr. Grigsby’s supporters and friends there. 
Now, on page 78 appears the affidavit of C. R. Odle [reading] : 

United States of America, 

Territory of Alaska, Third Dwision, ss: 

C. R. Odle, being first duly sworn, upon his oath says: My name is C. R. 
Odle. I am at present quartermaster sergeant in the Quartermaster Corps 
of the United States Army. I reside at Valdez, Alaska, and have resided there 
since July 27, 1916. I first arrived in Alaska on September 5, 1914. At that 
time I was in the Signal Corps of the United States Army. I was discharged 
from the Army at St. :Michael, Alaska, on December 17, 1914. I reenlisted in 
the Army at the same place on February .3, 1911). I was married in Alaska 
and have my home here. I am one of the persons named in a certain subpoena 
dated May 9, 1914, issued by Isaac Hamburger, a notary public of Alaska, 
requiring the persons named therein, including myself, to appear before him 
at the courtroom of the district court for the Territory of Alaska, third divi¬ 
sion, at the hour of 10 o’clock in the forenoon of the 14th day of IMay, 1919, 
to testify in a certain alleged (-ontest for the office of Delegate from Alaska to 
the House of Representatives then alleged to he pending in the said House of 
liepresentatives, and wherein James AVickersham was said to he the con¬ 
testant. Such suhi)(pna was served upon me by the United States marshal for 
the third division of the Territory of Alaska on May 9, 1919. Shortly after 
the service of said subpoena u])on me I met the said James Wickersham'on the 
street at Valdez, Alaska, and Mr. Wickersham asked me if I had received 
such subpoena. 

I replied that I had. He thei-eupon said that he had looked over the register 
of the Democratic primary election held at Valdez, Alaska, in the spring of the 
year 1918 and that he had failed to find my name thereon, and that he had 
been informed from a Republican source that my politics were Republican. I 
replied in substance that I was a Republican, but was not a supporter of his. 

I then asked him why he had subpoenaed me, and he said that having come 
to Alaska as a soldier I had no right to vote, and that voting by soldiers was 
Mlegal. I asked him why it was illegal now, when a representative of his 
in 1914 had informed the soldiers generally at St. Michael that it was not 
only their right hut their duty to vote, and he said that if I would look into 
the report of a certain committee of Congress in the content between himself 
and Mr. Sulzer for the seat for Delegate from Alaska under the election held 
in November, 1916, I would see that the voting by soldiers in Alaska had been 
held illegal and that a ruling had been made by the committee to that effect. 

I told him tl.at I did not see why we should l)e taken up and made “ boobs ’’ 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


71 


of when he hadn’t started a contest, and that if he did take me up there I 
would refuse to state who I voted for. He said, “ Well, you needn’t appear 
when the rest of the hoys appear up there, and I will tell Mr. Heed about 
our conversation,” ]Mr. Keed being his attorney and representative at Valdez. 

In obedience to .said subpoena I appeared before Mr. Hamburger, the notary 
public, in the court room of the district court at Valdez at 10 o’clock a. m. on 
]\Ia.v 14, 1919. INIr. .1. L. Re<^d, of Valdez, w;is present and stated that he repre¬ 
sented ]Mr. Wickersham. Before any further proceedings were taken Mr. Reed 
sinnounced that C’apt. M. H. Faust, who had also been subpoenaed, and myself 
would he excused and that our depositions would be taken. Further afliant 
sayeth not. 

C. R. Odle. 


Subscribed and sworn to before me this lltli day of May, 1919. 

[SEAL.] Anthony .T. Dimond, 

Notary PuMic for Alaska. 

Commission expires February 13, 1921. 

This man Dimond is the man of whom I just read to you about, 
and who told Shutts not to testify, and who told everybody there 
not to testify, except these men who were excused. Now, I say to 
you, Mr. Chairman, that this does not appear anywhere in the record; 
it is printed in this Grigsby brief with a lot of stuff of that kind. 
I want to present my affidavit in answer to that. I did have a con¬ 
versation with that man. [Reading:] 


United States of America, 

District of Columhia, ss: 


Janms Wickersham, being first duly sworn, deposes and says in answer to 
the allegations contained in the affidavit of C. R. Odle, found on pages 78, 79, 
80, and 81 of contestee’s brief in this contested-election case: 

That affiant had no knowledge or information that said or any affidavit had 
been made by said Odle until affiant first saw it in said brief when served on 
afliant on March 2, 1920. 

It is admitted that Odle was one of the Signal Corps soldiers served with a 
supboena at Valdez, Alaska, on May 9, 1919, to appear before Isaac Hamberger, 
notary public, to testify in this contested-election case. This affiant at that 
time was wholly unac(iuainted with the said Odle personally; admits that on or 
about IMay 9, 1919, after the service of the supb{enas upon about 14 soldiers 
who had voted illegally at Valdez, affiant was accosted on the street of Valdez 
by a i)erson in military clothes who introduced himself to affiant as Odle, and 
who asked to have a talk with affiant; he said his name was C. R. Odle; that 
he was a soldier; that he had been supboenaed; that he had formerly been 
classed as a Republican but had not supported me at the election on November 
5, 1918, but had voted for Charles A. Sulzer; he then said that he wished 
to appear in obedience to the supboena so served on him, and testify to the truth, 
but that he dared not do so; that if called to testify he would refuse to do so, 
because if he did he would be almsed and otherwise mistreated by the other 
Signal Corps men and soldiers who had voted illegally, and who did not intend 
to testify on ^May 14, 1919, in answer to the subpoena. 

He said the Signal Corps men and soldiers at Valdez had all voted for Sulzer 
on November 5. 1918, but that they were advised not to testify and he did not 
want to do so if they did not, and he appealed to me for advice as to what he 


should do. 1 • 1 .1 ^ 

(Idle is rather a small man, anemic in appearance, and evidently not an 

aggressive or pugnacious person; he told me he was married, and that also 
seemed to make him more timid; after some little consideration and listening 
to his story, my sympathy was aroused for him, and I told him that we would 
excuse him from testifying until after the others had testified, and that if they 
appeared and testified'he could be called later to tell his story. He seemed 
verv ‘u-ateful to me for giving him this chance to escape from an embarrassing 
position, and readily agreed to my suggestion, and left me. That is the fair 
iubstance of the whole of my conversation with Cdle, and the coloring of his 
affidavit and his statements referring to the right of soldiers to vote in 1914 
are all untrue and whollv fal.se, and evidently put in the affidavit by A. J. 


72 WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Dimond, the attorney who appeared for the Signal Corps men and soldiers at 
Valdez on ]\Iay 14, 1919, and instructed, urged, and commanded them not to 
answer questions, as he has done at all times since. 

James Wickersham. 

Subscribed and sworn to before me this 22d day of March, 1920. 

M. W. Pickering, 

Notary Public in and for the District of Columbia. 

Now, that is subscribed and sworn to and has no more right to be 
before this committee than the Odle affidavit has, and it was offered 
merely in answer to that Odle affidavit, which was put in Mr. 
Grigsby’s brief for the purpose of loading it down with a lot of stuff 
that is not in the record and that is not true. Odle could have been 
called, but he admits here that he did not vote for me. When he told 
me that he didn’t vote for me he also told me Avhat the situation was. 
He said if he came in there and did not vote as all those other sol¬ 
diers did he would be afraid; I excused him for that reason, with 
the understanding that he was to be called if the other men did come 
in and testify, but they did not come in and testify. They all re¬ 
fused. Of course, it would not do any good to call Odle, because he 
told me that he would not testify. 

The Chairman. We will adjourn for the evening. 

(The committee thereupon adjourned.) 


Committee on Elections No. 3, 

House of Representatives, 

Tuesday^ March 301920. 

The committee met at 8.15 o’clock p. m., Hon. Cassius C. Dowell 
(chairman) presiding. 

The Chairman. Gentlemen, there is a quorum present, and we will 
proceed. 

STATEMENT OF HON. JAMES WICKERSHAM, CONTESTANT— 

Resumed. 

Mr. Wickersham. Mr. Chairman, when I left off last night, or this 
morning, I was considering some objection to Mr. Grigsby’s brief. I 
want to go back just a moment to take up for a short time something 
relating to these rejected ballots. 

Mr. Grigsby, in his brief, declares that there was every opportunity 
given to my attorneys at the time of the canvass of these votes to see 
these rejected ballots; I want to go over that just for a moment. It 
will take but a short time. 

I call the attention of the committee to the statement of my attorney 
as I read it to the committee last night, saying at the time of this find¬ 
ing of the canvassing board, after consideration of those ballots, that 
there w^ere 9 majority which had been cast in my favor, and after 
having received a new dispensation from Mr. Grigsby in the way of 
an opinion this board ceased to consider them. 

Now, my brief stated that I did not have an opportunity to examine 
them, and Mr. Grigsby comes back at me rather roughly about that; 
I want to call the attention of the committee to the record with re¬ 
spect to that. I call the attention of the committee to page 742 and 
some following pages of the record with respect to that. 





WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 73 


Beginning back liere, at about page 730, and in that neighborhood, 
are the proceedings of the canvassing board, and on page 742 they are 
considering the Perseverance precinct. I will just read from a part of 
those returns to show how my attorneys were treated in that matter 
[reading] : 

Mr. Rfstgard (he was my attorney). This certificate of result gives Wicker- 
sham 17. Is that correct? 

The Chajkman. The certificate of re.snlt is wrong. Do you want to count the 
ballots? 

Now, Mr. Grigsby puts that in the record to show that there was an 
effort made on the part of the chairman of the board to permit my 
attorney to count the ballots. Aas a matter of fact, that was sarcasm. 
[Beading:] 

Do you want to count the ballots? 

Mr. Kustgard. No ; I just call attention to the fact that the certificate of 
result, certified to by the judges, certifies that the results are that Sulzer 
received 19 and Wickersham 17 votes. 

The Chairman. Yes; but the tally shows Sulzer 19 and Wickersham 15. Now, 
if you desire, we will run over those liallots promptly and count the Wickersham 
votes—any courtesy or satisfaction we can give. 

Now, if you know the governor, 3^11 know how he said that. Mr. 
Bustgard said [reading] : 

No; I don’t ask anything of the kind. 

Now, at page 745, the chairman says, ‘‘Well, I’m the only member 
of the board who has seen how that ballot is voted.” He is putting 
it up to the canvassing board as to what they are going to do, but he 
tells them, “I’m the only member of the board who has seen how that 
ballot is voted.” And Mr. Davidson, another member of the board, 
“And I don’t knoAv what that—it isn’t because I am for either one, 
it’s principle.” A little farther down [reading] : 

The Chairman. Well, it seems to me that a motion is in order whether to 
count this ballot or whether to refer the matter to the Attorney General. 

Mr. Davidson. I move that the ballot be counted. 

Mr. Garfield. I am not prepareil to second that motion. I would prefer, owing 
to the closeness, apparent closeness of the election, that we proceed with every 
caution necessary, in order to have a fair and impartial canvass of the vote 
and that we may act advisedly on the question from the legal standpoint of the 
authorized legal adviser of the Territory. I would move that these returns and 
all subsequent returns which we may examine, up until the time that we can 
secure that advice, be laid aside for further action by the board. 

The Chairman. I am inclined to agree with you, Mr. Garfield, because this 
may come up a great many times. 

And right there they changed the method of counting those votes. 
That is on page 745. 

The Chairman. And the fact that they did not count the votes as 
far as this committee is concerned, is immaterial, is it not? 

Mr. Wicio:rsham. Yes; I think so, if the committee will now take 
up and count the ballots. I am only calling attention to this, that 
the chairman of the board was sarcastic, and I am only calling the 
attention of the committee to that so as to show the manner of going 
over these ballots. I do not think it is necessary to go over that. 
I have tried to put the matter before the committee from the legal 
standpoint that these ballots had not been counted, and I also said to 
the committee that my attorneys were not given a fair opportunity 
to see them, and that we are therefore very much in the dark about it. 


74 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Mr. Hudspeth. Do you refer to the ballots of this particular 
precinct ? 

Mr. WiCKERSHAM. That is only one of them. 

Mr. Hudspeth. Do you want them all counted? 

Mr. WicicERSHAM. Only those that were wrong. I do not want 
, them all, only those that were wrong. 

The Chairman. I suggest, judge, that on the question of counting 
the ballots, from the legal phase of it, that you should be heard here. 
Something has been said about whether we should count the ballots 
or not, and I think whatever there is to offer on that you should 
offer. But now as to the fact that they did not count the ballots- 

Mr. WiCKERSHAM. That is conceded. 

The Chairman. And that they refused to count the ballots under 
the advice of the attorney general I assume that there is possibly 
no reason for going into that, as it would be immaterial anyway 
unless they had been counted and tallied properly. 

Mr. WiCKERSHAM. Well, I think probably that is correct, and Mr. 
Grigsby, in his opinion to the board, said that the board had no 
authority to-count them, and only Congress had the authority. 

Mr. Grigsby. When you refer to counting the ballots do you mean 
retallying them or counting the rejected ballots? 

The Chairman. I mean the rejected ballots. 

Mr. Grigsby. I w^as wondering if at any time it is in order to have 
them examined. 

Mr. Kowan. There is no contention that he has the authority to 
examine them. 

Mr. Grigsby. Any time he wants I am willing that they should be 
examined. 

Mr. Kowan. There is no issue on that point. 

The Chairman. Then, as I understand, both of you are willing 
that the committee shall take these rejected ballots and examine them 
and pass upon their validity? 

Mr. WiCKERSHAM. Yes; I do. 

The Chairman. You agree to that? 

Mr. Grigsby. Yes. 

Mr. Chindblom. And as to all other ballots, except the returns ? 

Mr. WiCKERSHAM. Yes. 

The Chairman. How is that? 

Mr. Chindblom. All other ballots except the returns. 

Mr. Hudspeth. The returns were made? 

The Chairman. I understand you do not contend that- 

Mr. Grigsby. I do not know about that, Mr. Chindblom, now. My 
opinion- 

Mr. Chindblom. I am just making the inquiry. 

Mr. Grigsby. I contended this, in my opinion to the canvassing 
board, that if they had the right to count a ballot wrongfully re¬ 
jected by the judges of election they certainly would also have the 
right to reject a ballot wrongfully counted by the judges of election. 
I think that would follow. But 1 do not know that there is any alle¬ 
gation either in my pleadings or in Mr. Wickersham’s that there were 
any ballots wrongfully counted. 

The Chairman. That is, the ones that were tallied and counted? 

Mr. Grigsby. I do not think there is any such allegation. 




WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 75 


The Chairman. Then if there is no need, I think we can save a 
good deal of time and get down to the real question if both sides 
agree that we shall count all rejected ballots, and that we shall take 
the returns as they are sent here by tlie board, except as to uncounted 
ballots. 

Mr. WiCKERSHAM. Yes. 

Mr. Kowan. And the points raised b}^ the contestants at these vari¬ 
ous places. 

The Chairman. Those are not involved in the question of ballots. 

Mr. Chindblom. They are not involved in the count. 

The Chairman. No ; not in the question of ballots. Of course, the 
illegal votes, if there are any, those are raised. 

Mr. Grigsby. I am not sure about the allegations. I do not re¬ 
member. 

The Chairman. I assume now that your brief did not raise the 
question and that Judge Wickersham did not raise it. 

Mr. Grigsby. And that is the only way it could be raised. The 
ballots are all here. 

The Chairman. I assume that; but we do not want to go into the 
question if the question is undisputed. We want to get down to the 
point at issue and let the committee determine that—and I think we 
are getting it—so that we will know what the controversy is. 

Mr. Wickersham. I assume that I am the only one that can raise 
any question on that. I have no doubt but that many illegal ballots 
were counted and I got the worst of it. But I do not raise the ques¬ 
tion, because if you were to carry it to the end you would have to 
count them all. 

Mr. Elliott. How many ballots w^ere cast? 

Mr. Wickersham. About 9,000. 

Mr. Grigsby. I am willing that the whole ballots be recanvassed. 

The Chairman. The committee would not go into a question that 
is not involved in the controversy. 

Mr. Wickersham. I have not asked that. 

The Chairman. That is a matter for the committee to determine. 

Mr. O’Connor. Is there any way of determining by whom these 
rejected ballots were cast? 

Mr. Wickersham. Possibly not. 

Mr. O’Connor. I was just thinking that maybe some of the per¬ 
sons whom you are mentioning now whose votes you claim were 
illegally cast might be among the rejected ballots, but as you say 
there is no way of ascertaining who cast them, there is no use of 
pursuing that. 

Mr. Wickersha:m. There is another charge in view ydth respect 
to the Kramers and the Riggses. I offer the marriage license of the 
Kramers here to show that they were married. 

The Chairman. This is in 1916 ? 

Mr. Wickersham. 1916. 

Mr. Chindblom. What has that to do with this election? 

Mr. Wickersham. All I was going to show, Mr. Chairman, was 
that last night I said something in answer to Mr. Hudspeth and 
probably misled him to believe that those votes were cast in 1918. 

The ChxVirman. He corrected that. 


76 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. AVickersiiam. I wanted to correct that; that is all. I do not 
want any mistake about that, because the Kiggses and Kramers voted 
in 1916. ’ 

Mr. Hudspeth. I asked the question if they did vote in 1918, and 
you said no. 

Mr. Wickersiiam. I knew that was the case, and I wanted the 
record correct. They are not involved in this case, and I was criticiz¬ 
ing Mr. Grigsby for bringing that up in his brief. 

Mr. Grigsby. Before you go ahead, did you put in evidence the 
history of the Biggs family? 

Mr. Wickersham. I do not have any history of the Biggs family. 

Mr. Bowan. That was only read from. 

Mr. Grigsby. It went into the hearings. 

The Chairman. I have no doubt it went into the notes, and under 
my objection. 

Mr. Wickersham. It only Avent in because I had to make some 
sort of answer to what Avas in his brief. 

This Biggs and Kramer matter in 1916 I Avas trying to explain, 
and the Sliutz affidavit, which is not in the record, and the Dooley 
affidaAut, which Avas put in in the same Avay. I called all those to the 
attention of the committee last night, because they are in the brief. 

Mr. Boavan. We have heard of that. 

Mr. Wickersham. Noav, there is another affidavit in this record 
that is in the same shape, and that is the Foster affidavit, on page 365 
of this record. And I Avish the gentleman Avould look at that for a 
moment. There is the notary public at CordoA^a, Alaska, and he Avas 
the notary public before Avhom Mr. Grigsby’s agents and attorneys 
took the depositions of some witnesses at that time, and at the end of 
the deposition of one Walker this is put in [reading] : 

In connection with the testimony of witness, Georj?e E. AA’^alker, the counsel 
for contestee desires to introduce as e\’idence the following afhda\dt: Contestee’s 
Exhibit B. 

It is a mere affidaAut of Mr. Frank H. Foster, in Avhich he swears to 
a lot of things before Noaks, Mr. Grigsby’s attorney for that place, 
and it is put bodily into the deposition without Mr. Foster having 
been sAvom or his deposition taken. It is entirely ex parte. His 
deposition Avas not taken; Ave had no opportunity to cross-examine 
him in any way, shape, or form. This affidavit is merely chucked 
into the record. Now, if Mr. Foster had at any time appeared, or 
was placed on the Avitness stand, and had made any sort of affidavit 
in the matter, it Avould justify this affidavit being put in, and he 
could have been asked to explain some difference between his testi¬ 
mony that he had given, and an opportunity could haA^e been giA^en 
to cross-examine him, then there might be some reason for putting 
it in. But out of whole cloth they chucked that into the record. 

Mr. Hudspeth. Was your attorney present? 

Mr. Wickersham. Yes; my attorney—I did not haA^e an attorney. 
I was telegraphed to go on there and I got a tavern keeper to go 
doAvn to appear for me. I could not reach there. The boats run 
so infrequently up there that you can not get around only once a 
month. I telegraphed to this man to appear for me. He is not a 
laAvyer and did not knoAv enough to object. I think he did object 
to that. But Avhether he did or not, the testimony Avas taken and 
ought not to be considered by this committee in any Avay. 


WICKERSHAM YS. SULZER (DECEASED) AND GRIGSBY. 


77 


Now, there are two depositions right at this point that I want to 
call attention to, depositions of this man Walker and John Moe. 
They 1 lave testified-to a lot of facts—or to a lot of alleged facts— 
as to Avhat people told them, and Walker and John Moe are about 
as worthless scamps as there are in Alaska. There is testimony 
to that effect, by me at least, in the record, and they have testified 
with respect to a lot of men voting, or four or five. Walker testified 
to voting at Cordova, and he also said that they were Wickersham 
men, or something of that kind. 

iNIr. Grigsby. Excuse me. Walker does not testify that anybody 
told him how anybody voted. If they did, jioint it out in the record. 

Mr. AVickersham. To what does he testify? 

Mr. Grigsby. That certain men testified in Cordova. 

Mr. AATckersiiam. That is all he testifies to? 

INIr. Grigsby. Yes, sir. 

Mr. AYickersham. If that is all he testified to it is not so material. 
Then who does testify as to how they voted? That is right. He is 
right about that. It is AValker who testifies that they voted. It is 
Frank Foster who testifies how they voted. There is no doubt as to 
what Frank testifies in his affidavit. 

Mr. Grigsby. That is right. 

Mr. M^ickersham. As to how they voted. In his affidavit he says 
that he is an attorney at law residing at and practicing his profes¬ 
sion at Cordova, Alaska. That “ I was in the town of Cordova, 
Alaska, on the 4th and 5th days of November, 1918; that I was taking 
quite an active part in the election that took place on the 5th day of 
November, 1918, at which said election a Delegate from Alaska to 
Congress was elected; that my activity was exerted on behalf of the 
Fepublican Party ”—but not on my behalf. [Laughter.] That is 
another one of the scamps that does work of that kind for the Gug- 
genheims there (reading) : 

That I know .Tames Wickersliam, wlio was a candidate at said election tor 
Delegate to Congress; that I was also acquainted during his lifetime of Charles 
A. Siilzer, who was also a candidate at said election for Delegate to Congress. 

That on the evening' of the 4th day of November, 1918, I had a conversation 
with J. B. Hudson, in the Alaskan Hotel, town of Cordova, at which con¬ 
versation Ilobert Gottschalk \vas also present; that Robert Gottschalk was 
at said time a Strong supporter of James Wickersham; that in this conversa¬ 
tion the said J. B. Hudson stated to me in the presence of Gottschalk that he, 
Hudson, intended to vote foi* Janies l\dckersham for Delegate to Congress at 
the election to be held in Cordova the following day. 

That I am acquainted with Hr. William Zacharias and with Hrs. William 
Zacharias, who voted at the election held in Cordova on the 5th day of Novem¬ 
ber, 1918, for the purpose of electing a Delegate from Alaska to Congress; 
that I was present at the voting place when said election was held in the 
town of Cordova at the time William Zacharias, IMrs. William Zacharias, and 
Mrs. A. L. Spencer appeared at said voting place, and saw them and each of 
them cast their ballot at said election ; that shortly thereafter, within .5 or 10 
minutes after said parties had voted, ]Mrs. William Zacharias stated to me that 
herself, her liushand, William Zacharias, and Mrs. A. L. Spencer voted for 
James Wickersham for Delegate from Alaska to Congress. Among other things 
in said conversation, she used the following language: “ Well, there are three 
good IWckersham votes.” 

Now, later on, we found Mrs. Spencer. 

Tlie Chairman. That is the affidavit of Frank H. Foster? 

Mr. AViokersiiam. Yes; and he was not a witness in the case at 
all. They saiv apparently that there was nothing to George AYalker’s 



78 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


testimony, except that these people voted, and he knew them; that 
they came from some other precinct. 

The Chairman. Is there an}^ other testimony in the record with 
reference to how any of those persons voted ? 

Mr. WiCKERsiiAM. Yes; we found Mrs. Spencer down in Seattle 
and put her on the witness stand. She testified in rebuttal that she 
never told the people anything of the kind, and that the Zachariases 
were with her at all times while they were there, and that they did 
not tell whom they voted for. 

The Chairman. That is the case, is it not, about which Mr. 
Grigsby says in his brief that you were mistaken in the laying of 
your foundation, and that it was not Walker they talked to but 
somebody else? Is that correct? 

Mr. WiCKERSHAM. No; I think not. 

Mr. Grigsby. There is nobody that swore he had that conversa¬ 
tion with Mrs. Spencer. Mrs. Spencer testified in Seattle denying 
certain conversations which nobody swore that she had. 

Mr. WiCKERSHAM. But she testified she was with the Zacharaises all 
the time while they were there from the time of voting until they went 
away, and she knows that they did not do anything of the kind. 

The Chairman. This is the case that was referred to by Mr. Grigsby 
in his brief, that you did not show that that conversation referred to 
there in that affidavit did not take place ? 

Mr. WiCKERSHAM. Possibly. 

The Chairman. Now, as I understand you, there is not any further 
testimony as to how these people voted except that affidavit ? 

Mr. WiCKERSHAM. I Understand that is true. That is the only tes* 
timony, and that affidavit was put in surreptitiously. It is ex parte. 
The man was not sworn as a witness and gave no testimony. I am 
calling attention to it in view of these other things. 

Mr. O’Connor. Was she examined by your attorney in Seattle ? 

Mr. WiCKERSHAM. Mrs. Spencer; yes. 

Mr. O’Connor. Did you ask her how she voted ? 

Mr. WiCKERSHAM. Yes; and she refused to tell. She said that she 
was a great friend of the Sulzers, visited with them, had their pic¬ 
tures, and said that she knew me and was very friendly to us, and 
declined to tell. 

Mr. Chindblom. She had friends in both places? 

Mr. WiCKERSHAM. She had friends in both places. 

Now, I am going to call your attention to these illegal votes at Cor¬ 
dova, after a while, in connection with the testimony of Mr. Grisby 
himself, who was in Cordova at that time. There was a lot of crooked* 
ness in Cordova that day. 

Mr. Rowan. Dispose of that now that you are on it. 

Mr. WiCKERSHAM. And Mr. Grigsby was here. Yes; we can prob¬ 
ably dispose of that right now. 

Mr. Rowan. Then we will not have to come back to it. 

Mr. WiCKERSHAM. Tum back here to Mr. Grigsby’s deposition in 
connection with that other matter. 

The Chairman. This is the Cordova precinct? 

Mr. WiCKERSHAM. This is the Cordova precinct. Now, at page 
546 is the testimony of Mr. Grigsby. He testifies down here that he 
was in Cordova that day. He says, “ In Cordova it is now claimed 


WICKEESHAM YS. SULZER (DECEASED) AND GRIGSBY. 


79 


that the town of Cordova went Wickersham for the reason that a 
great many Wickershamites from the outside precincts of Cordova 
were permitted to vote in Cordova.” Now, we begin to see in a 
measure how they Avere permitted to vote. [Reading:] 

It was agreed there, I believe, by the party managers that no challenges 
would be interposed on that ground, and there was a general sentiment 
throughout the Territory that the territorial law was right; that a man should 
be permitted to vote anywhere in his division that he happens to be on election 
day,*especially since at that time of the year, the close of the mining season, is 
when men are more or less in transit. 

Then I asked the question (at p. 547) [reading] : 

By Judge Wickekshaac : 

Q. But you have given an opinion to the governor of the Territory of Alaska 
that the law was invalid and void because it was in conflict with the organic 
act?—A. That was since the election. 

Q. You think it is correct?—A. That was certainly my opinion when I 
gave it. 

Now, in addition to his opinion, if you will examine the returns in 
these cases, you will find in every instance that there is notice given 
to all of the election officers by Mr. Grigsby officially as attorney 
general, and it is posted or printed on the printed election records 
the officials had with respect to the qualifications of the electors, so 
that there is no question about Mr. Grigsby’s opinion at that time on 
that question. [Reading:] 

Q. You say there was an agreement at Cordova wherein everybody was 
allowed to vote (there is a mistake in the print. It should be who) who lived 
in the division for 30 days; how do you know that?—A. I heard it talked of. 

Q. Somebody told you?—A. I was there when such a stipulation was made. 

Q. On election day?—A. Y^es; on election day. 

Q. When; at what time on election day?—A. This last year; 1918. 

Q. Who made the agreement there at Cordova? Who was speaking about 
it?—A. The matter was discussed between Mr. Jimmie Gallen and Deerer. 

That is Foster instead of Deerer? 

Mr. Grigsby. No, sir. 

Mr. Wickersham. Who Avas it? 

Mr. Grigsby. Why, he testified it was Gerrie. I do not knoAv hoAv 
the stenographer wrote it. 

Mr. Wickersham (reading) : 

Bud Sergent and some others, and they agreed not to interpose any challenges 
on that ground. 

Q. They were all Democrats?—A. Mr. Gallen had always been a Bepublican. 

Mr. Gallen is another one of those Republicans. 

Noav, there is Mr. Grigsby’s own admission that he and these other 
people made an agreement at Cordova on election day that everybody 
that came along could vote. 

Mr. Hudspeth. What ticket Avere you running on ? 

INIr. Wickersham. The Republican ticket. 

Mr. Hudspeth. You refer to these as being Republicans? 

Mr. Wickersham. There are a lot of Republicans Avho support 
the Democratic ticket in Alaska just as there are, thank God, a lot 
of Democrats Avho do the other thing. Our line of cleaATage is not 
always strictly observed. 

Noav, here is an agreement betAveen Mr. Grigsby, or at least he says 
he was present when it was made, and it is their purpose to vote 


80 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

everybody that came along. Of course, that agreement was in viola¬ 
tion of the law. It violates the statutes of Congress providing for 
the voting of only those who are qualified to vote. It was a con¬ 
spicuous violation of the election laws and Mr. Grigsby was a 
party to it. And yet through this agreement with these people, thus 
getting these outsiders to vote, he now comes in and denounces the 
whole pro]DOsition and wants to throw them out. Now, I say that the 
statement of Mrs. Spencer in consideration of a matter of that kind, 
when Mr. Grigsby admits that he was present, and admits that he 
was a party to that contract, is much better than Mr. Grigsby’s 
statement about it, although he does not say anything about it in his 
testimony. 

Mr. Grigsby. May I ask a question ? 

Mr. WiCKERSHAM. No. 

That is the situation at Cordova. Now, there were some votes cast 
there they say under certain circumstances that Avere considered by 
this little bunch of Avhat he calls leaders, and that the}^ all agreed that 
they should be A^oted. Noav, I think the presumption is that they 
voted for themselves, that they did not vote for me, because Ave could 
only find one of them, Mrs. Spencer, and her testimony is in this 
record, and she says that story is not true that they admitted that 
they voted for me, and that Frank Foster’s story is not true, and 
Frank Foster did not dare to go on the AAutness stand and be cross- 
examined. He was one of the gentlemen who was there, although 
he is very careful not to say that he supported me, because he did 
not, and Mr. Grigsby knoAvs he did not. 

Mr. Grigsby. I know that he did. 

Mr. WiCKERSHAM. I ImoAv that he did not, and that is not in the 
record and this committee is not bound by it. 

Mr. Grigsby. Just do not state what I know and aa o Avill not have 
any altercation. 

Mr. WiCKERSHAM. NoAv, SO mucli for Frank Foster. As for John 
Moe, he was an old saloon keeper in Fairbanks. He kept a saloon in 
the red-light district for several years. He is of that type. 

Mr. Roaa\4k. What AA^ere his politics? 

Mr. WiCKERSHAM. John is a Democrat. [Laughter.] 

And just as soon as the prohibition laAv Avent into force in Alaska 
John was appointed a prohibition officer to enforce the prohibition 
law in the Territory of xVlaska. 

Mr. CiTiNDBLOM, He probably kneAv the ropes. 

Mr. WiCKERSHAM. He knows the ropes thoroughly. 

I can not go OA^er his testimony. It is in here. John testifies sub¬ 
stantially this, that he heard somebody say someAvhere that they 
voted for Wickersham, that they supported Wickersham, or some 
other little expression of that kind, and John looked for those men, 
and they had left the country apparently since the election. John 
comes in and testifies that they did not vote in their precinct, and 
that he knew hoAv they voted, and that he had heard them say or 
had heard somebody else say hoAv they had voted; in other w^ords, 
to cast a cloud upon four or five more votes. There are not many 
of those votes, 10 altogether. But it only shows you what this 
felloAv George AValker, John Moe, and Mr. Grigsby, and those others 
all added to gether were trying to do. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 81 

Mr. Rowan. May I ask a question ? 

Mr. W ICKERSIIAM. Yes. 

Mr. Rowan. Is there anything in the record here that shows 
that this Moe Avas a keeper of a red light saloon in the red-light 
district? That is in the record, is it? 

Mr. Wici^KsiiAM. Yes. I testified to it myself, because I had 
known of him for many A^ears. I kneAA^ AAdiere his place AA^as in the 
I’ed-light district. 

Mr. Grigsby. Did you issue the license to him ? 

Mr. WiCKERSHAiM. If there Avas any issued, I did, while I was 
there. I Avas there until 1907. He never had a license prior to that. 
I probably issued it to him. But I did it if at all under the United 
States laAv which required me to do it. 

Noaa^, I only Avant to call the committee’s attention to one other 
thing in this matter, aa Inch is probably not A^ery serious, but is this, 
that at the time Ave began to take testimony at Seattle on August 4, 
1919, I discovered that Ave Avere going to have a good deal of trouble 
to get the depositions taken aa ithin proper time, and I call attention 
to this because of the fact that Mr. Grigsby has quite a lot of deposi¬ 
tions here, Avhich are not printed and which were held out of the 
record and not printed until recently. On August 4—and the time 
began to run on July 28, so that it Avas within a Aveek— I Avrote him 
a letter offering to Avaive the 40 days’ time, and the 10 days’ time, 
the Avhole 90 days Avithin Avhich to take depositions so that he could 
begin immediately to take depositions, and I could begin immediately 
to take depositions so that Ave could take all our depositions at the 
same time, and it Avould have given me time and enabled him to get 
his testimony here promptly and on time, but I was served with a 
pleading in this case, refusing to do that, very promptly, and Avhen I 
reached Ketchikan or Juneau his attorney met me at the Avharf 
with a formal proceeding. ^ 

I only mention that because it is officially in the record of the 
serAung of the pleading. I mention it because we could have had 
plenty of time to take his depositions and gotten them here, but 
he declined to do so. As a matter of fact they could all have been 
here long ago anyway. 

Noav, Mr. Chairman, I am going to take up the fraudulent sup¬ 
pression of election at the Nushagak precinct. Nushagak and Chog- 
giung precincts, the record shoAVs A^ery clearly, are adjoining pre¬ 
cincts. They are in the Dillingham election district, the Dillingham 
recording district, out on Bristol Bay, way out to the Avestward. 
There are two precincts in that election district, Chuggiung and 
Nushagak, and a man named French is the commissioner out there. 
French is a Democrat, a A^ery bitter partisan against me, as the 
record shows, and Avas engaged very largely in getting Amtes against 
me, and taking a very great interest in the election two years ago; 
the record shows that the election almost turned on the Nushagak 
and the Choggiung precincts. If you will examine Judge Jen¬ 
nings’ opinion rendered in this case two years ago, you Avill find 
that it turned very largely on Choggiung and Nushagak precincts, 
and he threw those two precincts out in the 1916 election because of 
some technical objection to the returns. 

181744—20-6 


82 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

So this time the Democratic cohorts out there determines that they 
would not have any question about Choggiung and Nushagak. I 
had a big majority there. So French called the election in his dis¬ 
trict and posted notices, at least in the Croggiung precinct, the record 
shows, and appointed officers and held the election in the Choggoung 
precinct. In the meantime they had secured some additional forces 
in Choggiung, officials—all of the people there were nearly all offi¬ 
cials. He was a commissioner, he was the Indian agent, he had 
charge of the Indian schools there, and he had a lot of nurses, 
teachers, and jail guards, and all that kind of thing around him, 
belonging to the official class. They were able in that way to control 
the Choggiung vote. They knew they could not control the Nush¬ 
agak vote across the river and they did this: They divided the dis¬ 
trict—it was divided two years before—and they gave notices, but 
they did not send any records; he did not appoint any election offi¬ 
cers, did not get the blanks sent on for the purpose of holding the 
election, and when the people met for election day there were not 
any officials there to call the election; so there was nothing that 
the voters could do; all the people in that precinct were disfranchised 
in that way. 

The Chairman. Just one moment, Judge. Is there any way by 
which the electors there could have named their own election officers ? 

Mr. WicKERSHAM. No; I have got the statute in my brief. There 
is a clause in the United States election law providing that when the 
election is called and everything is done up to the time of the people 
coming together with the official documents on election morning, and 
then somebody is absent, they may elect some one in his place and 
go ahead. The law provides like this, section 8 of the act of May 7, 
1906: 

That in case any of the judges of election selected as herein provided for any 
precinct shall fail to appear^and qualify at the time and place designated for the 
election for which they shall be appointed, then in that event the qualified voters 
present may, by a majority viva voce vote, select a suitable person or persons 
to fill the vacancy or vacancies in said election board; and the person or persons 
so selected shall qualify and serve on said election board with the same powers 
and in the same manner as if appointed as hereinbefore provided. 

The Chairman. You think that would not apply if in the first 
instance the appointment had not been made ? 

Mr. WicKERSHAM. No; I would not. In the first instance the ap¬ 
pointment must have been made by the commissioner, and that never 
was done. If there was a vacancy under those circumstances, then 
the paraphernalia, the official documents being there, something to 
justify the holding of the election, they could fill a vacancy. That 
is exactly what the law says. 

There is no question about the facts in this case. On that day a 
man by the name of Nash, who was the school-teacher there at Chog¬ 
giung, on election day voted at Choggiung. He had lived there for 
several years and was a man of family and of good character. 

Mr. Grigsby. What was his business? 

Mr. WicKERSHAM. Scliool-teacher, the United States school¬ 
teacher at Choggiung, just across the river from Nushagak, 5 or 6 
miles a Way, Nushagak being a little below on the opposite side of 
the river. 

Mr. Chindblom. What river? 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 83 

Mr. WiCKERSHAM. The Nushagak River. 

Mr. ^ash had lived there for several years, and knew everybody 
in the Territory. He had been the school-teacher there for all these 
years, a man of prominence. AVe found him in Seattle, and took his 
testimony, one of the first depositions. I took it in the early part of 
August. He testified very fully to all these matters, because he was 
there. He talked Avith French and the commissioner and he talked 
to all these people before election and on election day and subse¬ 
quently. He stayed there until the next spring, and then we took 
his deposition after that. He testified very fully that there was no 
election held there; that there was no notice given; that the returns 
were not sent over, and testified A^ery fully with respect to all those 
matters. There is absolute^ no question about the facts concerning 
Nushagak. 

The Chairman. I want to get one thing in my head a little more 
clearly. AA^hen and hoAv are these precincts set aside. 

Mr. AA^ickersham. They are set aside by the judge of the district 
court in that division. 

The Chairman. And Avhen is that done ? 

Mr. AATckersham. That is done Avhene\"er the judge desires to 
create a neAv recording district at any time. 

The Chairman. And if a neAv one is not created, the old one re¬ 
mains just as it Avas established? 

Mr. AA^ickersham. Yes. The judge of the district court creates 
the recording district in his division, and this is one of the old record¬ 
ing districts of that division, and Avhen election time comes around 
the commissioner in that recording district is the election officer, and 
he divides it into precincts and appoints all the election officers. 

Mr. Roaa^an. That is the Federal law? 

Mr. AVickersham. That is the Federal hiAv. French Avas the man. 

The Chairman. These two precincts referred to had been es¬ 
tablished long before this election ? 

Mr. AATckersham. No; they Avere the two precincts Ave had the 
trouble over in 1916. 

Mr. Chindblom. They are the only precincts of the recording dis¬ 
trict ? 

Mr. AVickersham. Yes; just across the river from each other. 

Mr. Roavan. It is the law that Avhen the district has once been es¬ 
tablished it remains established until some subsequent act ? 

Mr. AATckersham. Yes; the precincts and districts both. Districts 
remain permanent under the United States statutes unless for some 
good reason the commissioner changes them. 

The Chairman. They are established originally by the judge? 

Mr. AATckersham. The voting precincts are established by the com¬ 
missioner, but the recording district, Avhere the commissioner has 
jurisdiction, is established by the judge. 

Mr. Hudspeth. There Avas one of the precincts that did not hold an 
election ? 

Mr. AATckersham. Yes. 

Mr. tIuDSPETH. xVnd there Avere no returns? 

Mr. AATckersham. Yes; the 1918 election. I am trying to demon¬ 
strate to you, that the testimony in the case shoAVS that French de¬ 
liberately failed and refused to hold the election there, knoAving very 
well that if it Avas held I Avould liaA^e a large majority. 


84 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. Hudspeth. I understand, but what cognizance could this com¬ 
mittee take of that ? 

Mr. W iCKERSHAM. It is a part of the first- 

Mr. Rowan. What would be tlie legal effect of that, assuming that 
we decided it was fraudulent? 

Mr. WiCKEKSHAM. The legal effect in my judgment would be that 
everything that French did under his order has to go out. 

Mr. Rowan. Both districts? 

Mr. WiCKERSHAM. Botli districts? 

Mr. Roavan. You would not say that it iiiA^alidated the entire elec¬ 
tion in the entire Territory? 

Mr. WiCKERSHAM. Yes. 

The Chairman. You mean in the entire district? 

Mr. WiCKERSHAM. In the entire district. 

Mr. Grigsby. Mr. Rowan asked if it inA^alidated the election for the 
entire Territory. 

Mr. WiCKERSHAM. No; I do not mean that. I said district. I 
mean the recording district, tlie two precincts. Nash’s deposition was 
taken, and it Avill be found from pages 76 to 81, in the record in this 
case, and if you look at the record on page TT, doAvn at the bottom, 
he was asked [reading] : 

Q. Was there an election held in the Niisliai?ak district?—A. No, sir. 

(j. Do you know whether Dr. French was over in the Nushagak precinct some 
time i^rior to the date of the election?—A. Yes, sir. 

Q. Do you know whetlier he took the supjdies over for the election on Novem¬ 
ber 5, 1918, at the time he went over in October?—A, No, sir. 

The Chairman. Let me get at your point. 

Mr. WiCKERSHAM. If you Avill let me get this first. 

The Chairman. Where are you reading? 

Mr. WiCKERSHAM. Page 77. Toward the bottom [reading] : 

Q. Do you know what became of those supplies; who did take them over?— 
A, Well, there was none. 

Q. To whom were they delivered, do you know?—A. Just a minute; he was 
there after this boat. He made two trips in October, over to Nushagak. 

Q. How late in October?—A. It was probably between the ISth and the 22(1. 

And the election ivas held on the 5th. 

Noav, at the iTry bottom of the page he sa^^s [reading] : 

Q. Do you know whether at any of tho.se times he took supplies over for the 
holding of the election on November 5?—A. No, sir; he did not. 

Noav, over on the next page, about the center [reading] : 

Q. And there was no election held in Nushagak?—A. No, sir. 

Now, over on the next page, about the center [reading] : 

(}. And there was no election over there?—A. No, sir. 

Remember, French is a Democrat. 

On the next page, page 79, pretty close to the top [reading]: 

Q. As a matter of fact it was his duty under the law to call the election, 
appoint election officers, and see that the supplies got there, because the sup¬ 
plies were all sent to him; is that correct?—A. Yes; I think so. 

Q. And he didn’t send them over?—A. No, sir. 

And further down [reading] : 

I Avas interrogated as to why this Avas not done^— 

Q. The people are of the opinion that you didn’t send the papers over and 
hold that election, becau.se he thought the biggest majority of the voters would 
be for me?—A. That is their public opinion about it. 


WICKEKSHAM VS. STJLZER (DECEASED) AND GRIGSBY. 


85 


Q. Wliat is your judgment about it, from what you know?—A. To be frank 
with you—of course, a man swearing can not swear what a man will do, hut- 

Q. What is your best judgment?—A. I believe in my heart that that is the 
reason he did not send them over there. 

Q. He had an opportunity to send them?—A. He had, twice^and ther^ were 
people come over to the hospital from Nushagak, that lived in Nushagak, and 
he was there twice that I know. 

Q. And he didn’t provide for that election in that precinct?—A. No. 

Q. And those people didn’t get to vote at all.—A. No, sir. 


Now. that is the situation. There is a certificate here also from the 
clerk of the court at Valdez, showing that no returns came from the 
Nushagak precinct: that he had sent all the election supplies. And 
Nash also goes on and testifies in his deposition here that there were 
more than 30 people residing in Nushagak precinct. As a matter of 
fact, it is one of the old precincts, has a large population there, 
and he gives the names of 28 or 30 people who resided there at that 
time, and none of them were permitted to vote. 

Mr. Chindblom. You mean 28 or 30 voters? 

Mr. IViCKERSHA^E. Yes; voters who resided there at that time. 
Nushagak is the principal point in that whole territory. 

Mr. Elliott. You spoke something about the district. How many 
precincts are there in that district. ? 

Mr. WiCKERSHAM. Two, Nushagak and Choggiung, just across 
the river from each other. 

Mr. Elliott. Nushagak is the place where they did not get the 
ballot? 

Mr. WiCKERSHAM. They did not get anything. 

Mr. Elliott. And from the other place- 

Mr. 'WiCKERSHAM. They did. 

Mr. Elliott. What was the result. 

Mr. 'WiCKERSHAM. Mr. Sulzer had a majority in the other place, 


of course. 

Mr. Elliott. Do you remember how many votes were cast in that 
precinct ? 

Mr. WiCKERSHAM. I liavc it right here. In 1916 there were 41 
votes cast there. 

Mr. Chindblom. You mean in Nushagak? 

Mr. WiCKEpsHAM. In the two precincts. 

Mr. Elliott. I am talking about the number cast in 1918 in the 

Choggiung precinct. . , 

Mr. WiCKERSHAM. In Choggiung? There were none in Nushagak, 
and in Choggiung there were 16 for Sulzer and 7 for me. 

Mr. Elliott. So that in this precinct thrown out it Avould take 9 
votes from Sulzer’s majority. 

Mr. WiCKERSHAM. Yes. , 

The Chairman. Your position with reference to this precinct 
where no votes were cast is that the other precinct should be thrown 

out by this committee? . . . ^ •/? ^ 

Mr 'vViCKERSHAM. My position is that it is just as if these districts 
were counties, only they are all larger than the ordinary counties, 
and in the counties there were two voting precincts, and that m one 
of the precincts they did not call any election or provide for it, but 

in the other precinct they did. , . , . . v 

Mr. O'Connor. Would they have a legal right to dispense with 

that precinct? 



86 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. WiCKEKSiiAM. Not at all. 

Mr. O’Connor. They are obligated by the law ? 

Mr. WiCKEKSiiAM. Obligated by the law to send those documents 
and everything there necessary to hold the election; oh, yes. 

Mr. Eowan. Now, give us the law with reference to throwing out 
the Choggiung district and the count there. 

The Chairman. I want to hear that again. It is a new one to me. 

Mr. Chindhlom. Suppose on the morning of the election in the 
Nushagak precinct the voters were assembled and found that there 
were no election officers, no ballots, no records, no means provided 
for holding the election, that they had gotten together and had 
sworn in election officers and had cast ballots, kept a record of the 
election, sent the judges’ records in, would this committee have the 
right to consider the result of that election ? 

Mr. WiCKERSHAM. As a matter of equity, but not as a matter of 
law. You would have the right in equity, because you could over¬ 
ride everything, but strictly in accordance with the law you could 
not do it. There are a lot of authorities on that question. That is a 
gathering of the people, of course, but it is without authority. 
There is^o authority of law for it. 

1 have in the record a certificate from the clerk of the court at 
Valdez that certifies ‘‘ and I do further certify that no returns were 
received in this office from the Nushagak voting precinct, division, 
and territory.” 

Mr. Chindblom. Is there any dispute about that? 

IVIr. W iCKERSirAM. No; I think not. 

Mr. Grigsby. There were no returns from there. 

Mr. WiCKERSHAM. There was no election held there, because this 
man was there. 

Mr. Grigsby. He was not in Nushagak. 

Mr. WiCKERSHAM. He was across the river in sight of it. 

The Chairman. We would be glad to hear you. Judge, on the law 
in the case with reference to throwing out the other precinct. 

Mr. WiCKERSHAM. McCrary on elections, at sections 1G9 and 170, 
lays down the general rule on this. McCrary says in section 168: 
“ Votes must be cast in the manner provided by law,” and then he 
goes on to give the authorities which substantially ansAvers the ques¬ 
tion you asked a moment ago. He says [reading]: 

Accordiiij? in State v. Binder it was held that in the absence of any evidence 
to the contrary it may he presumed that voters at an election were all le^?al 
voters of the city, and that those who did not see tit to vote acquiesced in the 
action of those who did vote, and consequently are equally hound and con¬ 
cluded by the result. 

This doctrine, however, must he taken with some qualifications. If, for 
example, the election is held under such circumstances as to pi-eclude the possi¬ 
bility that a majority of the persons entitled to vote could have had the oppor¬ 
tunity to do so, it is void, although held at the time and place provided for law. 
It was accordinjily held in a numher of cases in the Southern States during the 
rebellion that where the larjjer part of the district at the time of the election 
was in the armed occui)ation of rebel forces, an election attempted to be held 
in the portion of the district not so occupied was void. 

The true rule is this: If the opportunity to vote is siven to all alike and if 
those who abstain from voting- do so of their own fault and negligence, then those 
who do attend and vote have the right to decide the result; hut in a case where 
those who fail to vote constitute a large i)roiM)rtion of the voting population, 
and where they did not have the opportunity to vote, there can be no valid 
election. * * * 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 87 

INIr. CiiiNDBLOM. Is the author there speaking of the election unit, 
the voting unit ? 

Mr. Wickp:rsiiam. Yes. 

Mr. C hiiNDBLOM. That would be the election precinct, would it not? 

INIr. WiCKERSiiAiM. That is the general rule. 

Now, in Cooley’s Constitutional Limitations, the general rule is 
laid down by Mr. Cooley at page 775, and I want to refer to that 
briefly. It is cited in my brief. He says: 

That one entitled to vote shall not be deprived of the privilege by the action 
of the authorities is a fiuidainental principle. It has been held, on constitu¬ 
tional grounds, that a law creating a new county, but so framed as to leave a 
portion of its territory unorgnized, so that the voters within such portion 
could not participate in the election of county officers, was inoperative and void. 

Mr. Grigsby. That is a county officer. 

Mr. WicKERSHAM (reading) : 

That one entitled to vote shall not be dei)rived of the privileges by the action 
of the authorities is a fundamental principle. It has been held, on constitu¬ 
tional grounds, that a law creating a new county, but so framed as to leave a 
portion of its territory unorganized, so that the voters within such portion 
could not participate in the election of county officers, was inoperative and 
void. So a law submitting to the voters of a county the question of removing 
the county seat is void, if there is no mode under the law by which a city within 
the county can participate in the election. And although the failure of one 
election precinct to hold an election, or to make a return of the votes cast, 
might not render the whole election a nullity, where the electors of that precinct 
were at liberty to vote had they so chosen, or where, having voted but failed to 
make return, it is not made to appear that the votes not returned would have 
changed the result. 

I call special attention to this [reading] : 

Yet if any action was required of the public authorities preliminary to the 
election, and that which was taken was not such as to give all the electors the 
opportunity to participate, and no mode was open to the electors by which the 
officers might be compelled to act, it would seem that such neglect, constituting, 
as it would, the disfranchisement of the excluded electors “ pro hac ” vice, must 
on general principles render the whole election nugatory; for that can not be 
called an election or the expression of the popular sentiment where a part only 
of the electors have been allowed to be heard, and the others, without being 
guilty of fraud or negligence, have been excluded. 

That is undoubtedly the correct rule and is supported by wide 
range of authorities. 

The Chairman. What section is that? 

Mr. Rowan. It is page 775. 

Mr. WicKERSHAM. Page 775. 

Mr. Rowan. It is in the brief on page 51. 

Mr. WicKERSHAM. Yes. 

Now, Mr. Chairman, on page 781 he continues—and I want to cite 
him very fully, as it is important—[reading] : 

So it is held that an exclusion of legal votes—not fraudulently but through 
error in judgment—will not defeat an election; notwithstanding the error in 
such a case is one in which there is no mode of correction, even by the aid of 
the courts, since it can not be shown with certainty afterwards how the excluded 
electors would have voted, and it would obviously be dangerous to receive and 
rely upon their subsequent statements as to their intentions, after it was ascer¬ 
tained precisely what effect their votes would have had on the result. If, how¬ 
ever, the inspectors of election shall exclude legal voters, not because of honest 
error in judgment, hut willfully and corruptly and to an extent that affects the 
result, or if by riots or otherwise legal voters are intimidated and prevented from 
voting, or from any other reasons the electors have not had opportunity for the 


88 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


expression of their sentiments tlironii::li the ballot box, tlie election should be set 
aside altogether as having failed in the purpose for which it was called. * * * 
And }is we have already seen, a failure of an election in one precinct, or disorder 
or violence which prevent a return from that precinct, will not defeat the whole 
election, unless it appears that the votes which conkl not be returned in con¬ 
sequence of the violence would have changed the result. 

Mr. Rowan. In each of these cases, as I see them, it resulted in the 
whole election for that particular division being declared a nullity. 

Mr. WiCKERSHAivr. Yes. 

Mr. Roavan. They Avere voting then for Delegates to Congress, and 
if this fraud Avas of sufficient importance to affect the result, as I read 
these authorities, it would not set aside merely the result for the one 
county, or in that one division, but it Avould set aside the result in the 
whole Territory. 

Mr. WiCKERSHAM. I think you are mistaken about that. 

Mr. Roavan. ShoAv me where it says otherAvise. 

Mr. WiCKERSHAM. I Avill show you. It must naturally mean that, 
because if it did not the man who perpetrates a fraud Avould get all 
the advantage of it. I could perpetrate a fraud and prevent the 
people from voting and thereby declare the Avhole election Amid, if I 
did that in one precinct. 

Mr. Roavan. That is what it says, “ The election should be set aside 
altogether.” 

Mr. WicicERSHAM. It refers to the jurisdiction where the fraud was 
perpetrated. 

Mr. CiHNDBLOM. What is that jurisdiction? 

Mr. WiCKERSHAM. That is, in that county, in that precinct. 

Mr. Chindblom. In the case of a county election, I presume it 
would be, but what about other elections ? 

Mr. Elliott. In this election were there other men being voted for ? 

Mr. WiCKERSHAM. Yes. 

Mr. Chindblom. Only delegates to the legislature; or was there an 
election for attorney general at that time? 

Mr. AVickersham. No; there Avas not, but there were the members 
of the legislature. 

I now call your attention to the case of Marshall v. Kerns (32 
Tenn., 2 Swan, 68). This is from the opinion of the court [reading] : 

It was proved by witnesses that the election was not held in the fourth civil 
district of said county. The officer appointed to hold it failed and neglected to 
attend at the place of voting. There were some 50 or 60 voters resident in that 
district, and some 20 of them attended on the day at the place of voting. The 
coroner had notice, before his return, that the election was not held in this 
district. It was a case of willful omission on the part of the deputy appointed 
to hold it, but we are not prepared to say that the neglect was for any fraudulent 
design to favor either of the candidates. * * * Now, the present election was 

not held in one of the civil districts. This was an injury to the people of that 
district, who were thus defrauded of the lawful right to vote in the election of 
their clerk. Nor can it be said that the election was legally held, as the law 
required it to be held in every civil district. 

The people of an important division of the county being thus deprived of 
their privilege of voting, the officers’ return is no reliable evidence that the per¬ 
son returned as elected was the choice of the people in the county. If the elec¬ 
tion had been held in this omitted district, the result might have been different. 
To hold the election valid would be of dangerous tendency; for, if one district 
may be omitted, more than one may be omitted, and the election be placed very 
much in the power of the officer. We do not think the motive of the officer 
material to the question. The injury to the public is the same, whether the 
omitted duty be the result of corrupt motives or of mere negligence. In either 


WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 89 


case the public has been deprived of an important and highly valued right. We 
rest the case simply upon the ground that the election was not legally held, 
because not held in all the civil districts of the county. The people of the county 
are the appointing power; and the power not being legally exercised, not fully 
exercised, the plaintiff is not, in fact or in legal effect, appointed to the office. 
* * * And such fact appearing to the judge, he should deem it his duty to 

refuse to qualify and induct the pretender to the office. 

Mr. Chindblom. AYas not that a county office ? 

Mr. AAhcKERSHAM. That is what I said. 

Mr. Chindblom. AVhat was the judgment of the court in that case? 

Mr. AATckersham. The judgment—it Avas a contested-election case, 
and it was held that the election was void. 

Mr. Rowan. In the whole county ? 

Mr. AVickersham. Yes. 

Mr. Roavan. For the county officer? 

Mr. AATckersham. I am applying it to these districts. 

Mr. Roaa^an. This Avas an election for Delegate from the Territory. 
This case Avhich you have cited where there has been a fraud—this 
man or officer running for office in the political subdivision—or rather 
the election in that subdivision was declared void, not in the sub¬ 
division of the subdivision. 

Mr. AATckersham. My judgment about the matter is—I can not get 
a single authority, because Alaska is a case all by itself. The Terri¬ 
tories do not have counties or any other conditions as around here; 
but the point I am trying to make in respect to these districts is 
that when an election is Amid or found fraudulent you throAv out the 
district. 

Mr. Roaa'An. For a district officer? 

Mr. AYickersham. No; for every purpose; because the officer there 
has committed a fraud, he has permitted one precinct to vote because 
he and his friends could control it, and has deliberately prevented the 
other precinct from Amting. 

Mr. Roaa'an. He committed a fraud on the whole Territory ? 

Mr. AATckersham. Absolutely. 

Mr. Chindblom. Let me call attention to the facts in this case. 
The judgment rendered is as follows [reading] : 

It is considered by the court that the plaintiff is not entitled to be inducted 
into said office and is not entitled to be qualified as clerk of this court, and 
that said election has been successfully contested by the defendant. 

That portion of the judgment is in quotation marks. Then the 
report of the case goes on to say [reading] 

And, therefore, the defendant, who Avas in office, Avas permitted to renew his 
official bonds— 

And so forth. 

Elsewhere in the opinion it is stated that— 

George W. Kerns, the incumbent in said office and late a candidate for 
reappointment in the election by the people, moved the court for leave to 
defend and resist the said motion, and it was granted him. 

So that in that case the defendant, Avho had been the candidate 
for election, in the judgment of the court, Avas permitted to remain 
in office. In other words, he was inducted into office and gave neAV 
bonds and continued to serve. 

Mr. Hudspeth. He Avas the present incumbent? 


90 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Mr. Chindblom. He was the present incumbent. I take it if he 
had been a new candidate that he would have been inducted into 
office just the same. The fact that he was the old incumbent, I think, 
made no difference. 

Mr. WiCKERSHAM. Tliis same matter has been raised in Texas, 
and it has been raised there with respect to a number of elections, 
and the court, after going over the whole situation, concludes, at 
page 82 of the Twenty-third Texas Court of Appeals [reading] : 

If officers whose duty it is to send out or deliver election writs can decline 
and refuse to do so as to one precinct, they could as well do so as to all but 
one, which they might know would vote their own sentiments and would 
thereby deprive an honest majority of the right to vote upon a matter of the 
gravest moment to their interests. * * * \Ve are of opinion, on the facts 

exhibited in this record, that the vote for local option in Hunt (bounty on the 
11th of December, 1886, is for the reasons we have given above an absolute 
nullity; therefore the judgment in this case rendered by the court below is 
reversed and the prosecution dismissed. 

Mr. Hudspeth. That w^as a county election. 

Mr. WiCKERSHAM. Yes. Now, this other was a precinct election, 
but, as you see, it involved more than the vote of the precinct. It 
involved the election of delegate for the Territory of Alaska, but if 
you take that view, if you permit them to throw out the precincts 
in the election of delegate to Congress, you will be putting a premium 
on fraud that will enable the party that happens to be in power to 
control the elections. If you take that view, there will not be any 
Democrats elected any more. 

Mr. Koavan. I think this view, irrespective of politics, under the 
cases cited by you, where there is a decisive fraud in any political 
division, it makes the election in that political division a nullity. 

Mr. WiCKERSHAM. Then if a fraud of that kind shall cause an 
entire election to be declared a nullity, any citizen can come in 
and declare it a nullity. 

Mr. Eowan. I do not care how you appeal to the court for redress, 
as soon as you get within the jurisdiction of the court and the fact 
is shown that in any subdivision of a political division there is fraud 
in the election in that division, that election is a nullity, I do not 
care whether it is a Democrat or a Republican. 

Mr. WiCKERSHAM. Of course, if you take that view of it—let us 
assume that there was a fraud, that this man French refused to per¬ 
mit them to hold an election in the Nushagak district. I am a prop¬ 
erty owner and I am interested in defeating a man who has a big 
majority in the territory. All I have to do is to show that they 
did not hold an election in the Nushagak precinct and out goes 
the man Avho was elected. That is the end of that argument. If you 
assume that position, you have made that fraud the most powerful 
agent that is possible for every State in the Union. That is not the 
rule. 

Mr. Rowan. But that is the rule that Cooley gives. 

Mr. WiCKERSHAM. I kuow it is in one sense. 

Mr. Rowan. I would like to get away from it. 

Mr. WiCKERSHAM. I think that your good judgment and your 
sense of right would enable you to do it. You may have to lay 
down a new rule of honesty in elections to do it. If you do not, you 
will leave it wide open for any one of these commissioners in Alaska 
to make the elections all void. 


WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 91 

Mr. Elliott. As I understand this, one man had the control of 
only two precincts. 

Mr. WicKERSHAM. That is all. 

Mr. Elliott. With other precincts in Alaska he had nothing to 
do V 

Mr. WiCKERSAHM. No. 

Mr. Eowan. He had control of the two precincts in that division? 

Mr. iCKERSHAM. Yes. I think the rule is perfectly clear that 
when you can show that a man of that character is in the possession 
of the election machinery, and he purposely and deliberately defrauds 
the people in one precinct by refusing them an opportunity to vote, 
that it casts out the whole election. 

Mr. O’Connor. Did this man ever assign any reason to the people 
of Alaska or the people in that district why he did not have an 
election ? 

Mr. WiCKERSHAM. No. 

The Chairman. Was he called as a witness? 

Mr. WicKERSHAM. He was not in the Territory. 

Mr. O’Connor. There should have been two voting places in these 
precincts, but there was but one? 

Mr. WicKERSHAM. But one, and the big majority were in the other 
precinct, according to the testimony in the record. 

Mr. O’Connor. In the precinct where the election was not held? 

Mr. WicicERSHAM. Yes. 

Mr. O’Connor. And this official never gave any reasons for it? 

Mr. WicKERSHAM. I could not find him, and I assume Mr. Grigsby 
could not, or did not. 

Mr. Elliott. Suppose this man had kept both of these precincts 
from holding an election. What effect would that have had on this 
matter under the law ? 

Mr. WicKERSHAM. Well, it would have been fraud, of course, upon 
the people of the division and upon the men who were candidates. I 
have not considered that very carefully. I have not attempted to 
get the authorities together. 

Mr. O’Connor. Is he subject to prosecution as a criminal offender 
for not performing his duty ? 

Mr. WicKERSHAM. Undoubtedly. 

Mr. O’Connor. Was he ever brought to trial? 

Mr. WicKERSHAM. No; not at all. 

Mr. O’Connor. No prosecution was ever instituted against him? 

Mr. WicKERSHAM. Oh, no. 

Mr. Chindblom. Mr. Chairman, I want simply to make the ob¬ 
servation Tvith reference to the Tennessee case, Marshall v, Kerns, 
that it would be interesting to know—I think the opinion says noth¬ 
ing about it—-whether under the statute of Tennessee the incumbent 
holds over in case of failure of election. 

Mr. Hudspeth. I think so. He holds his term of office until his 
successor is duly elected and qualified. 

Mr. Chindblom. Yes; but in this case he gave no bonds; he simply 
started a new term. But, I say, it would be interesting to know 
whether the opinion was based upon a statute. There is nothing in 
the opinion to show. 


92 


WICKERSHAM VS. SULZEE (DECEASED) AND GRIGSBY. 


Mr. WiCKERSHAM. In the case of People v. Laine (33 Calif. 55), 
cited on page 52 of my brief the court there held [reading] : 

If a board of supervisors of a county neglect to divide a town or city into 
election districts and to appoint a board of registration in the same, in com¬ 
pliance with the registry act, and an election is held not in accordance with the 
provisions of said act, the election is void and confers no right upon the persons 
who claim to have been elected. 

And there are a lot of other cases along these general lines. 

There is also another case in Texas, on the same question, in 
Thirty-third Texas Criminal Reports, volume 94, which are not 
quoted in any way. 

Now, from these authorities I have gathered the rule that when 
this man in that district refused to hold an election in compliance 
with the law of the district, the votes cast in that district were void. 

The Chairman. Judge, have you examined the authorities with 
reference to the question of throwing out the precincts where fraud 
is shown in a contested-election case ? 

Mr. Wici^ersham. Oh, yes; there are a lot of authorities on that, 
and they have been cited here later. In Collins v. Teague recently 
the Election Committee No. 2 threw out a large number of precincts 
for fraud. 

The Chairman. Then, in that case where fraud Avas committed in 
the specific precinct or in a specific- 

Mr. WiCKERSHAM. Jurisdiction. 

The Chairman (continuing). Precinct, that precinct alone was 
thrown out and the other votes were counted. 

Mr. WiCKERSHAM. They were in this instance; yes. 

The Chairman. Was that in the Teague case? 

Mr. WiCKERSHAM. I do not have any recollection of that. 

Mr. Chindblom. Yes; in the Teague case certain precincts were 
thrown out and the results based on the remaining precincts. 

The Chairman. Because of the fraud of the precincts that were 
thrown out? 

Mr. WiCKERSHAM. Yes, sir. 

The Chairman. Does that line of authorities apply to the case 
that you are calling our attention to? 

Mr. WiCKERSHAM. I have those listed in the brief. 

Mr. Rowan. What page? 

Mr. WiCKERSHAM. I was trying to find it. 

Mr. Rowan. Do not stop now. 

Mr. WiCKERSHAM. I will refer to that later on. 

The Chairman. As I understand it, the authorities hold in the 
cases that you have cited that in contested election cases where fraud 
is shown in specific precincts that those precincts have beein thrown 
out and the other precincts counted. 

Mr. WiCKERSHAM. Yes; and the citations in the Teague case are 
very full on that question. I can not find them at the moment. I 
will a little bit later. 

Now, in the Cache Creek precinct the record shows this: Cache 
Creek is a sort of temporary precinct. There were some mining 
claims in the precinct and every spring a large number of people 
go up to the mine and they go out in the fall; they were authorized 
to hold an election in Cache Creek precinct on election day. But 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 93 

they had finished their mining and they wanted to go out, and on the 
morning of the election- 

The Chairman. How do you mean that they were authorized? 
Was there a precinct established there? 

Mr. Wickersham. Everything was regular so far as I know, and 
there were enough voters there and all that kind of thing, 35 or 40 
voters there; the precinct was regularly established and they were 
authorized to vote, and paraphernalia was received and the election 
officers w^ere there ready for the election; but, on the day before, they 
concluded that they would leave the precinct because they were 
through with their work, and the record shows that in order to get 
away from the precinct they had to start very early in the morning. 
It was 30 or 40 miles across the mountain to any place where they 
could rest the next night, and so they got up at 4 o’clock in the morn¬ 
ing, and had breakfast and went to vote. They had determined the 
night before that they would hold the election before they left. So 
they began about 4 or 5 o’clock to hold the election; they held it at 
the Foster cabin; they had a ballot box and the fellows there went 
in and voted, and by 5 in the morning or quarter after 5, all had left 
the precinct. They loaded up, and marched away with great cara¬ 
vans. We tried to find somebody at the office but everybody had 
left by 5 or a quarter after 5. We got all of them on the witness 
stand, and we have their testimony in this record. 

Mr. Chindblom. Were there any voters who might have voted 
that did not have any opportunity to vote because they had gone 
away before the time of closing the polls ? 

Mr. Wickersham. I do not know. The records show that there 
were probably 4 or 5 left there. 

Mr. Hudspeth. What was the irregularity? 

Mr. Chindbloim. They started voting at 4 or 5 o’clock in the 
morning. 

Mr. Wickersham. The law provides that the election board shall 
- keep open at polling places from 8 o’clock antemeridian to 7 o’clock 
post meridian. 

The Chairman. That is the Federal law? 

Mr. WicicERSHAM. That is the Federal law which I read last 
night, section 9 of the Federal law. 

Mr. Rowan. You claim that that Avas violated in that Avay? 

Mr. Wickersham. Yes; there is no question about that at all. 
Now, you will find the evidence at page 282. 

Wheelock was the first party put on the Avitness stand. Without 
going over Wheelock’s testimony he admitted that they left very 
early in the morning, but he could not tell what time. 

The Chairman. What does the record show Avas the vote in that 
precinct ? 

Mr. Wickersham. TAA^enty-three for Sulzer and three for me. 

Mr. HuDSPinui. Your contention is that at this particular box it 
Avas a void election because they did not comply Avith the law relatiA^e 
to opening the polls ? 

Mr. Wickersham. Yes. 

Mr. Roavan. Not that there Avas any fraud or irregularity, but the 
mere fact that they did not open the polls at the time provided by 
law? 


94 


WICKERSHAM YS. SULZER (DECEASED) AND GRIGSBY. 


Mr. WiCKERSHAM. Well, that is the fraud shown; yes. 

Mr. Eowan. And for that reason the votes should be thrown out? 

Mr. Hudspeth. In our State you have got to show irregularities, 
and if there is a fraud, it must be shown that somebody has been 
deprived of the right of voting. 

Mr. WiCKERSHAM. I do not know who was deprived of the right 
of voting. 

Mr. Hudspeth. IVe have to show that in our State, but I do not 
know what the law^ is there. 

The Chairman. Does that apply in the case wdiere the votes were 
cast at a time before that described by the statutes? 

^Ir. Hudspeth. Yes; for instance, in our State the polls open at 
7 o’clock in the morning and close at 7 o’clock at night. But they 
have been known to open them at daylight, the same as in jmur case. 
Contested elections have been based on that. But you have to show 
that somebody was deprived of his right to vote. They have been 
known to close at noon. 

Mr. WiCKERSHAM. Now, if you gentlemen will let me present this 
matter, I think it will obviate a great deal of difficulty. The first 
man whom we called was a man named Wheelock. Wheelock ad¬ 
mitted that he A^oted A^ery early, but he says all the time that he does 
not knoAv Avhat time. [Reading:] 

Q. Do you know at \Aiiat time the polls opened on that morning;, Mr. 
Wheelock?—A. I do not. 

Q. Did you vote?—A. I did. 

Q. At what time of day did yon vote?—A. That I can not say. I never 
noticed the time. 

Q. AVhat was the condition of the light at the time you voted?—A. Lamp¬ 
light. 

Q. The lamps AA’ere lighted?—A. Yes, sir. 

Q. AA'here was the voting done, Mr. AVheelock?—A. In the dining room of the 
company’s camp. 

Q. Is that where you voted?—A. No, sir; I voted at my place. They brought 
me the ballot box. 

Q. From the place where the election was held?—A. Yes, sir. 

Q. AVere the lamps lit in your place, Air. Wheelock?—A. Yes, sir. 

Q. It was dark then, outside?—A. Yes; it was. 

That is about all he testified. He could not remember the time, 
and Ave could not get a single one to remember the time. It Avas very 
early in the morning. 

Noav, Mrs. Wheelock did not Amte and she Avas not so scary as 
Wheelock Avas. She Avent through the same thing about it being early 
in the morning, and all that kind of thing. [Reading:] 

Q. How long after Air. AAUieelock voted did you leave?—A. Half an hour or 
more. 

Q. Did you notice any lights when you left?—A. Yes; in Air. Harris’s place. 

Q. Do you know whether the packing Avas done by lamp or day light?—A. I 
know that it Avas done by lamplight. 

Q. AVere there any lights used by the sleds at the time you started or after- 
Avards?—A. I can not say. 

Q. Did you have a clock in your place?—A. Only a Avatch. The clock Avas 
packed aAvay. I can not tell you the moment Ave left. 

Q. Did you hear anything about getting an early start in order to reach 
camp?—A. I heard about getting an early start, but nothing else. 

Q. AA'ere there any lights used by the sheds at the time they started or after- 
Avards?—A. I can not say. 

Q. Did you hear anything about setting a clock ahead?—A. No; I did not. 

Q. Hoav did it come that you did not vote?—A. I did not have the right tO' 
A'ote. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


95 


Q. Were you informed that you had no right to vote?—A. Yes, sir. 

(}. Was there any effort made to get you to vote?—A. Cnly that a lady there, 
Mrs. Allison, said to me “ If you do vote, vote for Mr. Suizer if for anyone,” 
hut that made no difference to me, as Mr. Harris had informed me that I had 
no right to vote. 

Q. Was it light enough when you left to see from one sled to the other, Mrs. 
Wheelock?—A. I can. not say. I am positive that we left before 8 o’clock. 

Then Harry Kingsberry came on, and it was just about the same 
thing; he could not say. AVe could not get any of these fellows to 
say. They all forgot. 

Charles M’Groarty says [reading] : 

Q. Did yu leave that morning?—A. Yes. 

Q. Where was the voting held?—A. In Jim Murray’s cabin. 

Q. Did you vote?—A. Yes, sir. 

Q. After or before breakfast?—A. After breakfast. 

Q. Do you know when you went to the polls?—A. No, sir. 

Q. AMiat time when you voted?—A. Can not say. I went to the polls and 
voted by lamplight. 

Q. Did you notice the cook’s time?—A. No, sir. 

Charles Irtdn was the cook, and they had some arrangement with 
Charlie about getting up early to get an early start, but Charlie did 
not look at the clock. They Avere fixed A^ery Avell about looking at the 
clock. [Reading:] 

Q. Do you remember any particular part of that morning when you did notice 
the time?—A. I certainly noticed at one part, because I get up by an alarm. 

Q. For what time was it set?—A. It was usually set for 4.30. 

Q. Do you knoAv for Avhat time it Avas set on that morning? —A. I am not 
sure. 

Q. Do you remember it was moved ahead on that morning?—A. No. 

Q. Is Mr. McDonald’s statement correct in that respect?—A. I Avould not 
dispute it. 

Now, he did not dispute Red, because Red is a Scotchman and red¬ 
headed, and he did not Amte. So he could afford to tell the truth. He 
Avas not afraid of the situation. 

Mr. Roavan. AVhat did he say? 

Mr. WiCKERSHAM (reading) : 

Q. State your name, age, and place of residence.—A. Malcolm McDonald, 42; 
Anchorage. 

Q. Are you not commonly known as ” Red ” McDonald, by \\diich name you 
were subpcenaed in this case?—A. Yes. 

Q. Mr. IMcDonald, where were you in the early part of last November, 
1918?—A. Cache Creek, A\"orking for the Cache Creek Dredging Co. 

Q. What sort of operations were this company conducting?—A. Mining oper¬ 
ations. 

Q. Any other companies operating there at that time, in that Aucinity?— 
A. Tavo or three, smaller. 

Q. Was there an election held there early in November?—A. I believe that 
there Av^as. 

Q. On Avhat date Avas that election held?—A. On the 5th of November, 1918. 

Q. What Avas the condition of the camp Avith regard to closing doAvn AA’ork 
and leaving?—A. Work Avas closed dOAvn and Ave had orders to leave. We AA^ere 
packing up to go out that morning. 

Q. Hoav many teams AA-ere leaving that morning Avith you, Mr. McDonald?— 
A. FiA^e horses ; single rigs. 

Q. About hoAV many men Av^ere going that Avay then, IMr. McDonald; do you 
remember?—A. As near as I can remember, there Avere 23 men. 

Q. About hoAV many men AA^ere employed by the Cache Creek Dredging Co. 
at that time?—A. Weil, there must have been over 30 men, I guess. 

Q. Do you knoAv the number of votes that Avere cast at Cache Creek at that 
time?—A. No. I only heard. 


96 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Q. How many people were living there at that place in November?—A. You 
mean in the precinct? 

(}. I mean there at Cache Creek where you were.—A. Only the people who 
worked there. 

Q. How many others in the precinct, approximately, say?—A. Only two or 
three others, that I know of. IMost of the people had left before that. 

Q. Mr. McDonald, how early in the morning did you begin to pack up before 
leaving, as nearly as you can recollect?—A. At 4 o’clock I was out in the yard 
getting ready. 

Q. Did you pack your sleds that morning?—A. Yes, sir. 

Q. Did you have lights?—A. Yes. 

Q. About what time did you have breakfast?—A. About 4 o’clock. 

Q. Where was the election held?—A. In .lim Murray’s cabin. 

Q. Was Mr. Wheelock mistaken about its being held in the cook house?—A. 
Yes; I think he was. 

Q. Where was Murray’s cabin?—A. Right there close, 

Q. Did you see any others vote, Mr, McDonald?—A. No, sir. 

Q. I wish you would state the names of the persons who went out. 

And then he gives a long list of names. [Reading:] 

Q. Did you leave together; that is, those you have mentioned?—A. All ex¬ 
cept Wheelock. He might have been 15 or 20 minutes behind us; as nearly as 
I can remember, we all pulled out together. 

Q. What was the condition of the light when you left?—A. It was dark. 
Still burning lamps, lanterns; in Wheelocks lights still burning. 

Q. How far is it from the camp to the dredge?—A. About a mile. 

Q. Do you remember anything about the condition of the light?—A. Yes; I 
recollect that it was not so dark; as we passed the dredge it was breaking 
daylight; still I could not see the head team. There were three or four teams 
ahead of me. 

Q. Did you notice the time when you left camp, Mr. McDonald?—A. Well, 
no; I didn’t just when we left; trying to get away—just didn’t notice. 

Q. Did you notice the time any time before it got light?—A. Not after break¬ 
fast. 

Q. Did you notice the time then?—A. I noticed the time when I went to 
breakfast. 

Q. What time was it?—A. Ten minutes after 4. 

Q. How long after that did you leave; do you recollect?—A. Not more than 
an hour. 

Q. What was your reason for leaving so early?—A. It was a long ways be¬ 
fore we could camp. 

Q. What distance was it to the camping place?—A. About 20 miles to timber. 
We had two' women and their children and a sick man, so we had to get away 
early. 

Q. Who was cooking there at the camp?—A. Charles Irvin. 

Q. Did you have any talk about leaving early that morning?—A. Y^es, sir. 

Now, Charlie Irvin says he would not dispute what Red McDonald 
said about this thing. [Reading:] 

Q. What was it?—A. I asked him if we could have breakfast earlier that 
morning so that we could get away. He said yes, any time. He said he had 
put the clock ahead. His time was different from mine. 

Q, How much difference was there between your times?—A. About two hours. 

Q. Was your time running with the cook’s time before that?—A. Yes, sir. 

Q. What is your opinion as to the time you left, that is by the time you "had 
been using? 

And then objection is made and finally he answered [reading] : 

A. I think I can reni’ember nearly. I am sure myself that it was not more 
than 5 o’clock. I do not think it was after 5 when we pulled out. 

Q. What was the condition there in the early part of November when the 
day shift went to work?—A. I do not remember well enough to state. They had 
lanterns when they left—carried their lanterns along. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 97 

Then he says [reading] : 

Q. Did you vote?—A. No, sir. 

Q. For what reason?—A. There had been arguments about it and I thought 
it was illegal. 

Q. With whom did you have arguments Mr. iNIcDonald?—A. Mattocks. 

Q. Before or after the election?—A. Before the election and after. 

Q. On the morning of the election?—A. Before that; it had been talked over 
the night before. 

Q. Were there any others present when you were having this talk?—A. I did 
not si)eak to any one but Harris. I said what are you going to do about this 
election? 

Q. What did Harris say?—A. Harris said, “If they all want to vote we’ll 
shove the clock ahead and make it time.” 

Q. Was Harris one of the judges of election?—A. I understand that he was. 
I was not in there when they voted—he was appointed one. 

Q. Was he interested in the company, Cache Creek Co.?—A. I understand 
that he was a shareholder. 

4c ♦ 

Cross-examination by Mr. Price: 

Q. You thought you could vote on your first papers?—A. Yes, sir. 

Q. Your statement that you left before 8 o’clock is an opinion?—A. No; I do 
not think it is an opinion. I know it. 

Q. Your statement that you left at 5 o’clock—was that an opinion?—A. I did 
not say it was at 5 o’clock, but right close to 5. Right after breakfast I went 
out to get started about 10 minutes after 4. 

Q. You judge the time to do your work would not be more than to 5?—^A. Yes. 

Whether they took the election returns with them or not, and bal¬ 
lot boxes, I don’t know. The evidence doesn’t show that, but they 
got it. 

The Chairman. Who were the judges of election in that precinct? 

Mr. WiCKERSHAM. Mr. Grigsby has named them in his brief. Can 
you name them now ? 

Mr. Grigsby. No. Didn’t any of them leave. 

Mr. WiCKERSHAM. You don’t know that. That is not in the 
record. 

Mr. Grigsby. You have got the names of those that left in the 
record. 

Mr. WiCKERSHAM. Part of them, but you don’t know anything 
about it. You weren’t there when their evidence was taken, and that 
isn’t in the record. 

Mr. Hudspeth. Is there any evidence in the case that this elec¬ 
tion was held open after the time prescribed by law ? 

Mr. WiCKERSHAM. No, sir. 

I want to turn to a case that is directly in point, Verney v. Justice, 
86 Kentucky, page 596. There the election was held along in the 
evening. The law prescribed that it should be held between certain 
specific hours, and when the hour to close in the evening came, by 
the vote then, one was elected, and when they held over an hour 
or two, they rushed over a lot of fellows and beat him. I will read 
you this decision, reading from page 601-^t begins on page 596. 

The whole decision I will attach at the end of my argument when 
I have finished. To-night I will just read portions of it. 

We have a constitutional provision in Alaska which is just as 
nearly like this in Kentucky as vou would expect two to be. Sec¬ 
tion 9 of the act of Congress of May 7, 1906, is part of the organic 
act—the constitution of Alaska. It declares that the election board 


181744—20 


i 



98 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

herein provided for shall keep the several polling places open for 
the reception of votes from 8 o’clock a. m. until 7 o’clock p. m. 
on the day of election. And it is substantially identical Avitli the 
constitutional provision in Kentucky, and the court there held the 
election was illegal and void because not in compliance with the 
constitutional provisions. 

The figures show there were 25 votes cast after that till 9 o’clock. 
So much of the election as Avas after the hours Avas illegal. In this 
case you can’t tell. They cast the Avdiole vote before they left that 
morning. The names Avere given in the record, and there Avere only 
tAvo or three men left in the community, and they probably, as I 
understand from the record, Amted Avith the other men before 5 
o’clock that morning. So I say, under the rule in the Vinej^ case 
the Amtes cast in that precinct were Amid and ought to be throAvn 
out, those for me and for the other side, too. 

Mr. Hudspeth. I understand that your contention is that that 
Amids the election in the entire district. 

Mr. WiCKERSHAM. Tlio other precinct Avas voided by a man who 
had charge of the election. We are going to get to another case in 
a few minutes where the same rule applies. 

The remedy in this case, the Cache Creek case, is stated in the fol¬ 
lowing language [reading] : 

Where the poll was opened the iiijjht before election, at a different place 
from the legal one, and a large number of illegal \mtes received, and the votes 
received the next day at the legal place were received in the same box un¬ 
opened, the entire vote was rejected. 

Well, that isn’t exactly the point, but substantially so. 

In McCrary on Elections, page 420, fourth edition, the rule is 
clearly stated in section 569, and is as follows: 

Th rule is thus stated in Howard v. Cooper (36th Cong.) : When the result 
in any precinct has been shoAvn to be so tainted Avith fraud that the truth 
can not be deductible therefrom, then it should never be permitted to form 
a part of the caiwass. The precedents, as well as the evident requirements of 
truth, not only sanction, but call for the rejection of the entire poll when 
stamped with the characteristics here shown. 

And then I cite other authorities. And noAv I have the Tague 
case, right here before me, at page 60, of this brief, and this is a 
quotation from it [reading] : 

Early in the history of congressional contested-election cases, the doctrine 
Avas developed that Avhere precincts or districts Avere so tainted Avith fraud 
and irregularity that a true count of the votes honestly cast Avas impossible, 
such precincts or districts must be rejected and the parties to the contest may 
prove aliunde and receWe the benefit of the votes honestly cast for them. 

As early as the Fourteenth Congress (181.5-1817), in the case of Easton 
Scott (RoAA’ell’s Digest, 68), the committee unanimously recommended that the 
alleged return from the precinct of Cote Sans Dessein be rejected, and submitted 
resolutions declaring petitioner entitled to the seat. This report Avas recom¬ 
mended to the committee, Avith instructions to receive evidence that i>ersons voting 
for their candidate AA’ere not entitled to vote on the election. Apparently the 
recommendation of the committee to reject the vote of the precinct Avas not 
questioned. The doctrine thus laid doAvn by the Elections Committee in the 
Fourteenth Congress has been folloAved in an ovenvlielming number of cases, 
the most recent being, etc. 

I take the position in this Cache Creek case that all of that vote 
should be thrown out; all Amted three hours before the precinct opened, 
and they had packed their grips and left the community and they were 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


99 


probably 15 miles away from the polling place at the time the law 
provided tliat they might meet and cast their ballots. The whole 
thing is illegal and void. 

Now, the fraudulent suppression in the Forty Mile precinct begins 
at lyige 61 of my brief. These matters were charged very fully in my 
notice of contest; notice was given to counsel on other side very 
fully, and the evidence was taken also very fully. AVithout going par¬ 
ticularly into the situation, this is what happened: In the Forty Mile 
recording district there Avere five Acting precincts. The evidence 
shoAvs A^ery fully and A^ery clearly that the principal places in the 
Forty Alile district AA^ere the toAvn of Forty Mile and the toAvn of Steel 
Creek. There Avere tAvo toAvns in the recording district. 

Mr. CiiiNDimoM. Incorporated toAAuis? 

Mr. AVickersham. No; just mining camps; they had been there for 
80 or 40 years; old places. But just about the time of the election the 
commissioner had receiA^ed instructions from the judge over at Fair¬ 
banks, or rather from the clerk of the court. He receiA-ed a letter 
from the clerk of the court giving him some instructions to do aAvay 
Avith some of the precincts there, and evidently there Avere some other 
instructions Avhich Ave didn’t get hold of, because this is Avhat he did. 

About 31 or 82 days before the election he changed the situation 
there on the 1st of October, 1918. He made a ncAv order in his dis¬ 
trict, abolishing tAvo precincts. He abolished the Steel precinct and 
the Jack AA'ade precinct and added their territory to tAVo other 
precincts: For the Jack AA^ade precinct he established a jAolling place 
at Moose Creek, a place 15 or 20 miles aAvay from Jack AAhade, aAvay 
back in the Avoods, in the mountains, at a cabin where there Avere tAvo 
men Avho lived there. At the other place he sent them 18 to 20 miles 
to a small place Avhere there Avere a feAv peoj)le, and thus he added a 
greater population at these tAvo places, and fixed their voting places 
aAvay from them 18 or 20 miles, Avhere they couldn’t get to them. It 
Avas done deliberately and fraudulently, and at the instance of Judge 
Bunnell, Avho testified here, that that instruction Avas submitted to 
him. Under the laAv it should hav^e been done 60 days before the elec¬ 
tion, and it Avas done on the 1st day of October. You Avill find this 
on page 61. 

The authority and duty of the commissioner in providing voting 
]Arecincts in his election district is thus defined and pointed out in 
section 5, act of Congress of May 7, 1906 (34 Stat. L. 169 (ITI)), as 
folloAvs [reading] : 

Sec. n. That all of the territory in each recordin.a: district now existini-: or 
hereafter created situate outside of an incorporated town shall, for the purpose 
of this act, constitute one election distidct; that in each year in which a Dele- 
(r.jte is to he elected the coininissioner in each of said election districts shall, at 
feast 30 daj'S before the date of said first election, and at least 00 days before 
the date of each subsequent election, issue an order and notice, signed by him 
and entered in his records in a hook to he kept by him for that purpose, in which 
said order and notice he shall- 

First. Divide his election district into such number of voting precincts as may 
in his judgment he necessary or convenient, detining the boundaries of each 
I>recinct by natural objects and permanent monuments or landmarks, as far as? 
practicable, and in .such manner that the boundaries of each can he readily 
determined and become generally known from such description, si)ecifying- 
a i)olling place in each of said precincts, and give to each voting precinct an 
appropriate name by which the same shall thereafter he designated: Provided, 
hoverer. That no such voting i)recinct shall be established Avith less than 30 


100 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


qiisilitied voters resident therein; that the precinct established as aforesaid sha 1 
remain as permanent precincts for all siihseipient electicins, unless discon¬ 
tinued or chaiified by order of the commissioner of that district. 

Second. Give notice of said election, specifying? in .said notice, amonj? other 
thinj?s, the date of each election, the boundary of the voting? precincts as estab¬ 
lished. the location of the polling place in the jirecinct, and the hours het^veen 
which said polling places will he open. Said order and notice shall he given 
publicity by said commissioner by posting copies of the same at least 20 days 
before the date of said tirst election, and at least 30 days before the date of 
each subsequent election. 

1 have just quoted the law on pa^e 61. I want to call it to your 
attention, because it violates every part of the statute, in the action 
of this particular “ Order and notice of election to be held on Tuesday, 
November 5, 1918.” [Reading:] 

In the office of the Ihiited States commissioner at Franklin, Alaska, fourth 
judicial division, in the matter of the election of a Delegate to the House of 
Itepresentatives from the Territory of Alaska, one member of the senate of the 
Territory of Alaska, four members of the house of representatives of the Terri¬ 
tory of Alaska, one road commissioner for road district No. 4. 

In pursuance of an act of Congress approved May 7, 1906, entitled “ An act 
providing for the election of a Delegate to the House of Representatives from 
the Territory of Alaska,” I. John J. Donovan, United States commissioiier in 
and for the Forty Mile precinct, fourth division. Territory of Alaska, do hereby 
order that said recording district be, and tbe same is hereby divided into the 
following voting precincts, the boundaries tliereof defined, a polling place speci¬ 
fied and a notice of said election published; fixing the date of said election, and 
designating the said polling places as follows, and the hours between which 
said polling places will be open; 

1. Moose Creek precinct: It is ordered that the boundaries of said precinct 
shall be as follows: Commencing on the Fortymile River, at the international 
boimdary line; thence running upstream to the mouth of O’Brien Creek, in¬ 
cluding all tributaries flowing into the said Fortymile River and Walkers I'ork, 
and all its tributaries from the mouth of Cherry Creek upstream to the inter¬ 
national boundary line. 

2. Franklin voting precinct: It is ordered that the boundaries of said pre¬ 
cinct shall be as follows: Commencing on the Fortymile River at the mouth 
of O’Brien Creek; thence running upstream and including all tributaries of 
the North Fork within the boundaries of the Fortymile lu'ecinct and all 
tributaries of the South Fork upstream to the mouth of AValkers Fork ; thence 
in an easterly direction to the mouth of Cherry Creek, on said Walkers Fork, and 
all its tributaries flowing into Walkers Fork. 

3. Chicken voting precinct: It is ordered that the boundaries of said precinct 
shall be as follows: (’ommencing at the mouth of Walkers Fork, on the South 
Fork of the Fortymile River; thenee in a .southerly direction, including Den¬ 
nison Fork and all its tributai'ies. Mosquito Fork and all its tributaries, and 
the Tanana Basin within the boundaries of the Fortymile precinet. 

4. That the several polling places herein designated will be open for the 
reception of votes from 8 o’clo(*k until 7 o’clock on the day of .said election, to 
wit, the 5th day of November, 1918. 

Dated this the 1st day of October, 1918. 

John J. Donovan, 

United Htdtes Comnils.sioncr in and for the Fortioniic Prceinct. 

Territory of At a ska. 

Now, you will notice that he doesn’t name any polling place in any 
one of those ])recincts. He doesn’t tell the voters where the voting 
is to be held in any one of those ]frecincts, not at all. All these 
people in the town had no notice of where they were to go to vote. 
They didn’t have any notice of where this cabin was away back in 
the woods, and there was no notice that there was going to be any 
voting there, and the place fixed by the law was divided into three 
different places. The law is this way. ITnder the United States 
statute, to change the district or the jirecinct he had to do it at least 


WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 101 


60 days before the election. He did not do it until the 1st day of 
October, and the election was held on the 5th day of November, 35 
days after. That is void for that precinct. 

Under the statute those precincts are made permanent. He didn‘t 
change it 60 days before the election, so that 60 days before the 
election his jurisdiction failed him. He had no right to touch those 
precincts after that date. They were permanent precincts on that 
day and those people had a right to have them left just as they 
were because he must do it before the 60 days expires, and he had 
no jurisdiction. But he did it on the thirty-fifth day, and he utterly 
disrupted the voting at those precincts, with the result that 30 or 
40 people who voted at Steel, had nowhere to go, and didn’t know 
where to go in the first place, and if they did know, it was a two- 
days’ trip away back out to this cabin in the mountains, because it 
was in November, and a trip of that kind for men and women would 
make it a two-day trip, 30 or 40 of them didn’t go at all. They 
could not go. 

Mr. Rowan. AVhat remedy do you say must be applied there ? 

Mr. WicKERSHAM. Tlirow out the whole precinct or else do this: 
On page 65, you will find a synopsis of the depositions of the ])er- 
sons whom we could find to take, not all of them were taken: but, 
these were taken that we could get hold of. Take, for instance. 
Hunt, at the top of that list. He lived at Wade precinct, and he 
said it was a 32-mile round trip to where he would have to go to 
vote, but if he could have gotten over there he would have voted 
for me. Then, you take the next man, Patterson. He said he would 
have voted for the other man. He lived 32 miles distant. Some of 
them would have vote<l for me and they have lived there 8 or 10 
years. These men were called without regard to their politics. 
They were all so outraged in that country because of the frauds 
perpetrated on them. They had been wholly disfranchised and they 
came in there and protested against it. They sent a protest to Judge 
Bunnell. He violated the law. The judge violated the law in the 
first place in sending any such notice as that, and in sending any 
such instructions. If you will read the instructions here, you will 
see how peculiar they are. 

Mr. O’Connor. How many votes were returned in all the pre¬ 
cincts? 

Mr. WicKERSHA.Ai. Not many: because so many of them were dis¬ 
qualified by that. 

^Ir. Rowan. Was the name of that recording district the Forty 
Mile District? 

Mr. Wtc'kersha:m. Recording district. Some 16 or 17 men testi¬ 
fied they would have voted for me if they had been permitted to vote. 
Some oip them would have voted for Sulzer. 

The Chairman. How large were these precincts where the voting 
places were changed? 

Mr. Wtckersham. Two of the oldest ones in Alaska. 

The CuATR^rAN. What were they? 

Mr. WiCKERSiiAM. Jack Wade and Steel Creek. 

The Chatr:man. Hoav ninny votes do the recoixl show were in each 
of those precincts? 

Mr. Wi('KERsiiA.M. T have just read it to you. 


102 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

The Chairman. About how many, I mean, in those that were 
discontinued, the two precincts you refer to. 

Mr. WiCKEKsiiAM. There were 21 witnesses Ave had who testified, 
but there were a good many we couldn’t catch. I don’t knoAv how 
many there were there. It is impossible to tell. Now, we have got 
the testimony of a lot of these witnesses here. 

Mr. Chindhlom. Were you counting the names on page 65 of 
your brief? 

Mr. AVickeksham. Yes. 

Mr. Chindblom. That is 20. 

IVIr. AVic’keksham. Twenty instead of twenty-one. 

Mr. Eowan. I think you have gone over that pretty thoroughly. 
Is there any other part you want to go over? 

Mr. M^ickersham. Except to call the attention of the committee 
to the testimony of the Avitnesses, Democrats and Republicans, you 
haA'e a synopsis of it and I think the same rule ought to be applied 
in that as ought to be applied in the 40-mile district, that the Avhole 
district ought to be throAvn out because the frauds Avere perpetrated 
by the election officer in the district. 

Mr. O’Connor. AVouldn’t the real reason be in those precincts be¬ 
cause the election Avas not held in accordance Avith the laAv. 

Mr. M^ickersiiam. They Avere not. They Avere held in strict vio¬ 
lation of the laAv. 

The Chairman. MYre the A^oting precincts in the three places in the 
original voting precincts before the change was made Avhich you claim 
Avas in violation of the laAv ? 

Mr. M'^ickersiiam. The voting places, tAvo of them, at Chicken and 
Franklin, but probably not at Moose Creek; that is a new scheme. 

The Chairman. But the other tAvo of the three precincts Avhere 
the votes Avere cast- 

Mr. AVickersham. They Avere the old precincts, but the boundaries 
had been changed by this order of October 1. 

The Chairman. But the voting places Avere identical with the old 
Amting places in the old precincts? 

Mr. AA^ickersham. I understand in tAvo of them; yes. 

Tlie Chairman. AAdiat about the third? 

Mr. AATchersham. In Chicken and Franklin. 

The Chairman. Hoav about the other one? 

Mr. AATckersham. Moose, I understand, Avas not. That was a new 
place, put away back in the Avoods. 

The Chairaian. That had been entirely changed? 

Mr. AATckershaai. As I understand it, although Moose had been 
a voting place in 1916, but the polling place had been changed Avith- 
out any notice in the order so that the people had no notice of it. You 
Avill alloAv me those Amtes, if you Avant to give me the vote of these 
people Avho say they aa ould have voted for me if they had been able 
to get tliere—or you can throAv the Avhole precinct out. 

The Chairman. Your contention is that under the rule and under 
the hiAv Ave should throAv out all the votes cast there. 

Mr. AYickershaai. Yes, sir; I think that is the laAv. That is my 
vieAv of the laAV. Of course, I would rather have the other view 
adopted. I Avould rather you would allow me these votes, the re¬ 
turns as they are, and allow me these votes, but my judgment is the 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 103 


rule of the law is the other way. But if I was on the jury I don’t 
believe I would give any premium to frauds of that kind. 

We have arrived now at a new matter—the frauds of a large num¬ 
ber of nonresident soldiers in Alaska. And just at this point I want 
to call the attention of the committee to the report of the com¬ 
mittee in the other Congress that had this very matter before them 
and decided the situation, because in the contested-election case two 
years ago that was the fundamental point in the case. 

Mr. O’Co^s^NoiJ. Are copies of that report available? 

Mr. WiCKERSHAM. I liave one. I don’t know whether there are 
others or not. 1 am going to read to you from Judge Wilson’s re¬ 
port in the contested-election case of Wickersham against Sulzer in 
September 4, 1918, and ordered to be reported. There was no 
minority report; it was unanimous. 

Report 837, Sixty-fifth Congress, third session. I am only going 
to read so much of it as relates to the matter of the soldier vote. 

Mr. Rowan. Was it*at the same place and with regard to the same 
units ? 

Mr. 'Wickersham. No; but with regard to some of them; some 
of them the same names, and a good many of them were not. The 
truth is that out of the 36 soldiers that voted at the election of 1916, 
and which was held to be invalid and void, all of them had left the 
Territoiy of Alaska under orders of their superior officers, and only 
one of them remained there, and he was still in the Army. 

But there was a protest and objection and effort made to get the 
testimony of a large number of these Signal Corps men in the 1916 
election, but they refused to testify, being instructed by their officer 
not to testify, and they are the same men whom we objected to in 1918 
again, so that the matter overlajis in that way. But I want to specifi¬ 
cally call the attention of the committee that all of the men who took 
the oath at Fort Gibbon on November 5, 1918, they were in the United 
States Army, but they took the citizens’ oath, that they were citizens 
of the Territory of Alaska, and, as a matter of fact, they were only 
soldiers and there only temporarily. They all committed perjury. I 
Avant to read so much of this opinion as refers to this particular mat¬ 
ter. Not all of it, but just portions of it. [Reading:] 

Each and all hf the men whose votes are in question here came to Alaska as 
soldiers in the United States Army. They remained in such service from the 
respect!ves dates of their arrival in Alaska up to and until November 7, 1916, 
the date of this election, and were there in such service on that date. All were 
enlisted and accepted for service in the States and, as indicated by the official 
records, the number of men and date of enlistment heinj’" as follows: 

“ One in 1916, 5 in 1915, 20 in 1914, 4 in 1913, 4 in 1912, 1 in 1911, 1 in-, 

of whom there were 10 from Missouri, 8 from California, 1 from Kansas, 1 from 
North Dakota, 4 from Washington, 3 from Ohio, 4 from Colorado, 2 from Texas, 
1 from Louisiana, 1 from Minnesota, 1 from New York.” 

Seven were honorably discharged and reenlisted in Alaska on the following day. 

Each and all of them had been in the Territory more than a year immediately 
preceding the date of election and at Eagle or Fort Gibbon more than 30 days 
immediately preceding election day. 

If they had acquired a legal domicile in Alaska they were entitled to vote 
and the votes should be counted; otherwise, not. 

To become a citizen and a qualified elector in Alaska a bona fide residence of 
one year in the Territory and 30 days in the voting precinct is required. 

Here is a certificate made by the War Department and Aerified 
by Col. Lenoir, in charge of these soldiers in Alaska, stating their 



104 WICKERSHAM VS, SULZER (DECEASED) AND GRIGSBY. 

names, places of enlistment, their regiment, number, and term of 
their enlistment. . 

Mr. Hudspeth. I take it under your law a soldier is ineligible to 
vote ? 

Mr. AVickersham. He is. 

Mr. Hudspeth. Then I take it there can be no issue in this contest 
of the right of a soldier to vote ? 

Mr. AATckersham. No; it is a question of residence. 

Mr. Hudspeth. Then I understand if a soldier is actually a resi¬ 
dent of Alaska, notwithstanding the fact that he is in the military 
service, he can vote? 

Mr. WicKERSHAM. If he is in his precinct. 

Mr. Chindblom. In other words, a resident of Juneau who has 
lived there for a year prior to the election and in the voting precinct 
30 days prior to the election would be barred from- vesting by the 
fact that two days or a month before the election he enlisted? 

Mr. MTckersham. No; provided he voted. M^e haven’t got any 
particular laAV, but I think that is the general rule. 

The Chairman. Is that the rule as I understand it as laid down by 
the committee in the last Congress and which was adopted by the 
House ? 

Mr. MTckersham. MTll, I think it is. They don’t say that in that 
many words. They just excluded these soldiers because they had 
not done these things, but they did not say if they had lived there 
they might have voted. 

The Chairman. They excluded them because their residence was 
during their service? 

Mr. MTckersham. Yes, sir. 

Mr. Chindblom. Here is what they say according to your own 
quotation, on page 15 of the report of the committee of the Sixty- 
fifth Congress: 

If they had acquired legal domicile they were entitled to vote and the votes 
should be counted, otherwise not. 

Mr. MTckersham. That is the law. 

Mr. Elliott. How could a soldier acquire it ? 

Mr. AYickersham. He couldn’t acquire it as long as he is a soldier. 
And if for instance he enlisted in your county in Indiana in the Army 
of the United States, under the laws of the United States his resi¬ 
dence is reserved to him in your district as long as he is in the Army, 
and if he comes back to your district, to his original home, when he 
is discharged, that is his home. 

Mr. Eowan. Assuming one of these men went to Alaska and while 
there married and started a family- 

Mr. WicKERSHAM. They do that frequently. 

Mr. Eowan. Would you consider under those circumstances that 
he couldn’t elect to desert the residence of his enlistment and estab¬ 
lish a new residence in Alaska ? 

Mr. WicKERSHAM. I will say this, that there is no evidence that any 
one of them did that, except two. There are two of them that claim 
to have done that, a man, one Tegues, and a man, one Noaks. But all 
of these men in 1916 left there and were in the Army and all of those 
who have been discharged since 1918 have left the Territory except 
Tegues and Noaks. They are still in the Army. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 105 


Now, reading from page 17 of this report, he quotes from McCrary 
on Elections, page 70, sections 90 and 91 [reading] : 

Sec. 90. The fact that an elector is a soldier in the Army of the United States 
does not disqualify him from voting at his place of residence; bnt he can not 
acquire a residence, so as to qualify him as a voter, by being stationed at a 
military post while in the service of the United States. 

Seo. 91. Soldiers in the United States can not acquire a residence by 
being long quartered in a particular place; and thongh, upon being discharged 
from the service they remain in the place where they had previously been quar¬ 
tered, if a year’s residence in that place is required as a qualification for voting, 
they must remain there one yeai* from the date of discharge before acquiring 
the right to vote. 

Mr. O^CoNNOR. What was th^e result of that contest. Judge? 

Mr. AVickersiiam. I was seated. 

Mr. O’CoN NOR. The committee recommended it? 

Mr. WiCKERSHAM. Unanimously. 

Upon the question of the soldiers’ vote he referred to Hines’ 
Precedents and to Taylor v. Reading, a case cited from the Forty- 
first Congress, and also the report of the Judiciary Committee of the 
Senate in the case of Adelbert Ames, Senator from Mississippi, cited 
in the Compilation of Senate Election cases, 375. 

On the next page Judge IVilson, in his opinion, says [reading] : 

Applying this law to the facts here, the 36 soldiers stationed in Alaska who 
voted at Eagle and Fort Gibbon were without legal domicile there and were not 
in any legal sense inhabitants of the Territory, {uul therefore were not qualified 
electors therein. 

It is contended, however, that these soldiers hsid changed their residence 
from the States where they enlisted to Alaska and had acquired domicile there. 
The evidence in support of this is that they api)eared on election day, and upon 
their votes being challenged, took the required oath containing the declaration 
of residence and voted. 

And further on— 

Now, in keeping with what was apparently the view held by some of these 
officials, in the argument for th(‘ contestee, the contention is made that the 
residence or domicile of a soldier is determined by his intention; that (quoting 
from brief) “ these .soldiers have alrejidy shown their puri)ose and have estab¬ 
lished their residence in Alaska.” 

This argument seems to be based upon the assumption that the soldier or 
officer in the military service sent under orders away from the State of his 
original domicile and stationed in another State, while subject to the orders of 
his superiors, can have and exercise voluntarily and in his own right the 
requisite intention necessary to effect a change in domicile, and that, after 
being so stationed for the statutory period required for voting, a declaration 
of choice of domicile accompanied by the act of voting constitutes sufficient 
evidence that the change has been effected. 

Without stopping to discuss the public policy of approving here and estab¬ 
lishing a rule of this kind, it is sufficient to say that the law and authorities 
are in practical harmony and are all the other way. 

Mr. Chindblom. I suppose the underlying theory is that a soldier 
comes under orders, is not exercising his intention in selecting his 
domicile, and that it can not be his intention, but the intention of some¬ 
body else, with respect to choosing his place of residence. In Illinois 
a soldier can vote. He can send his vote in by mail. He doesn’t even 
have to register as other citizens are required to register. He can 
mail an affidavit, so that he doesn’t have to come and register. 

Mr. WiCKERSHAM. This question arose in a case from Mississippi, 
just after the war. Tlie report of the Committee on the Judiciary in 


106 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

the case of Mr. Ames, Senator from Mississippi, was cited here. I 
will read from that [reading] : 

His original domicile was in Maine. After his graduation from West Point, 
about 1860, he remained in the military service of the United States. In 1868 
he was ordered to Mississippi and in the same year became provisional governor 
by appointment by Gen. McDowell, then district commander, and he himself 
was, in 1869, promoted to the office of district commander by assignment of the 
President of the United States, and while in ^Mississippi holding this office he 
was elected by the legislature of that State to the United States Senate Janu¬ 
ary 18, 1870. 

The question of liis eligibility for admission to the Senate arose under the 
provisions of the Constitution of the United States requiring that “ no person 
shall be a Senator * * * who shall not, when elected, be an inhabitant 

of the State from which he shall be chosen.” 

The Judiciary Committee of the Senate reported that Gen. Ames was not, 
when elected to the Senate, an inhabitant of Mississippi within the intent and 
meaning of the Constitution. 

And then Judge Wilson quotes a lot of authorities on the defini¬ 
tion of what an inhabitant is and what a resident is and one who 
dwells or resides permanently in a place, one’s own home. Webster 
gives the following definition: “ One who inhabits or has an actual 
fixed residence.” He went on and gave a lot of definitions of what 
a resident and an inhabitant is. 

Mr. Chindblom. Was this man Ames in the United States Senate? 

Mr. WiCKERSHAM. Yes, sir; of course, you all know that the Sen¬ 
ate was Eepublican then, and Gen. Ames was a Republican, and 
everything was Republican, and these people were deciding against 
a Republican. They unanimously decided that Gen. Ames was not 
a resident of the State of Mississippi. He was not a resident there; 
he was a soldier there. 

During all the time of his residence there it was as a soldier and 
he had no right of residence there, and they turned him down on 
that, and on the basis of those provisions Judge Wilson held that 
these soldiers in Alaska in the 1916 election were not entitled to 
vote, and threw them out. 

Mr. Rowan. How would they affect your election ? 

Mr. WiCKERSHAM. If those soldier votes were thrown out I would 
have been elected. 

Mr. Rowan. Does the evidence show how they voted ? 

Mr. WiCKERSHAiM. Nearly all. 

Mr. Rowan. Now discuss, if you will, in particular how it was 
ascertained how those men voted for Sulzer. 

Mr. WiCKERSHAM. You begin on page 81, and you will find the 
data. Now, before we did anything else- 

The Chair:man. Can you give offhand, without taking any time, 
the precincts at which these soldiers voted, the number at each 
precinct ? 

Mr. WiCKERSHAM. The largest number of them voted in the Val¬ 
dez precinct. I think 18 or 20 voted there. Four of them voted at 
Fairbanks, six or seven voted at Fort Gibbon, and about six, I think, 
at Nulato. 

The Chairman. How many votes at Fort Gibbon? 

Mr. WiCKERSHAM. About six I think. It is in the record. The 
first thing I did in this matter was to get this record from the War 
Department on page 80, and you have the original in the record. 



VV^ICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 107 

^hat shows the original location of these soldiers, about 40 of them. 
I hat shows the names of 40, the date of their original enlistment, 
the places of their original enlistment and their places of residence; 
in addition to that there were three or four who voted whose names 
we did not know of at that time, and who came in subsequently, so 
That makes about 43; then there AA^as a vote cast at the Valdez Bay 
precinct of something like 23, fiA^e or six soldiers Avho Avere in the 
Regular Army, but who Avere draftees from Alaska, but Avere not in 
their oAvn precincts. Some of them Avere draftees from Alaska, so 
they Avere not Regular soldiers. 

Tlie C HAiRMAN. How many do you claim Amted outside of the 
precinct? As I understand you there Avere about 44 who voted 
Avho enlisted outside of Alaska, Avhose residence Avas outside of 
Alaska. 

Mr. AViCKERSHAAr. More of that, because some of these soldiers at 
Valdez Bay Avere Regulars. 

The Chairman. And a number vou say Avho Avere drafted in 
Alaska? 

Mr. AVickersham. Yes, sir. 

The Chairman. AVhere did they reside? 

^Ir. MTckersham. Not one of them voted in the precinct Avhere 
they AA'ere residents. 

Mr. O’Connor. Is there any difference between a Regular and a 
drafted man? 

Mr. Wickersham. Not a bit. 

Mr. O’Connor. Then the aggregate is something oA^er 60 or 70 
votes ? 

Mr. IVickersham. About 75 I think. You Avill find on page 102 
a list of the soldiers voting there. There were 31 illegal soldier 
Amtes cast in the Valdez Bay precinct and 43 or 44 in the re.st of the 
territory, making about 75 altogether. 

The Chairai^n. Did you establish hoAV the soldiers voted at Val¬ 
dez precinct? 

Mr. MTckershaai. Yes, Ave did; either in their statement or by the 
])rocess of exclusion. TAventy-three of them A^oted for Sulzer, seven 
voted for me, and one Amted for Connolly in the Valdez Bay precinct. 

Mr. Chindrloai. Hoav did you arrive at that? 

Mr. Wkuversiiaai. By finding the total number of votes cast and 
jmtting those men on the stand Avho Avere legal voters and having 
them testify Iioav they Am ted. 

The Chairaian. Did all the voters outside of the ones in the 
serAuce testify in the case as to Iioav they Amted ? 

Mr. AVickershaai. No; but this is the Avay they did it: There Avere 
so many votes cast in the A^aldez Bay precinct. ^Ye discoAmred Iioav 
many Avere legal. M"e put those legal voters on the stand, some of 
them foi- me and some of them for Mr. Sulzer, and we subtracted 
those Avho .voted for me from my vote, and those Avho voted for 
Sulzer from the balance, and that gaAm us the result. 

The Chairaian. Did you call as Avitnesses all the citizens who 
voted in that precinct avIio Avere not soldiers? 

Mr. MTckersiiaai. Yes; Ave called those, all of them. 

The Chairaian. And you have their testimony, all of them, as to 
hoAV they voted? 


108 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Mr. WiCKERsriAM. Yes, sir; and as many as voted for me we 
took away from the total vote cast for me, that left the soldier 
vote—and so many as voted foi- Mr. Snlzer. the number avIio voted 
for him; that left the soldier vote for him. So that we got that 
matter mathematically correct. 

Mr. Chairman, I don’t think it is necessary to'go through this 
record with respect to the soldier vote. We called as many of these 
people as we could. We got as much of this testimony as we could. 
1 went there in May and undertook to get their testimony. The 
record shows I sent each one of these men a letter asking them to 
come voluntarily up and make a statement as to hoAv they voted. 
They refused to do that. Then I had a subpoena issued from a 
notary public and subpoenaed all of them to appear before him and 
give their testimony. 

I read you last night their refusal to do that. They came there 
with Mr. Dimond, who is Mr. Grigsby’s agent, his attorney, after he 
got into this case, and Mr. Dimond objected and put eA^ery obstacle in 
the way. The men themselves would haA^e testified but for Dimond. 
The first man Ave called refused to testify. Dimond instructed him 
not to ansAver. Then I went over the list. They Avere all there and 
they Avouldn’t testify. And then I came back here and got that reso¬ 
lution through and started in to get their depositions under that 
resolution. When I got out to Seattle I found that Col. Lenoir, in 
charge of the soldiers, had not received any notice to haA'e them 
there. I demanded of him that he get some authority to summon 
them. He didn’t do it. When I got up to Valdez later on I under¬ 
took there to get authority. I telegraphed him A^ery extensively. 
You will find my telegrams in the record, Avhere I sent a large num¬ 
ber of telegrams to Col. Lenoir—not to the War Department, but to 
Col. T^fcnoir, because he had charge of these men in Alaska—trying to 
get these depositions taken. It was impossible to get even an ansAver, 
until the thirty-third day after that resolution till we got any notice 
there at all. 

In the meantime I had tried to subpoena these men; had subpoenaed 
some of them, and the situation in Alaska under Mr. Dimond Avas so 
bad that I was beaten up. He Avouldn’t let people testify. Mrs. 
Tver Avas a good Avoman and Avould liaA^e testified if he Avould have 
let her: but he stood there all the time giving her adAuce that she 
didn’t haA^e to testify; we couldn’t make them do anything. Mr. 
(xrigsby had told them that, and' we found those people Avhen Ave 
got out there in possession Gf these statements. AVe proceeded in 
the matter of taking those depositions until the thirty-third day. 
After I had giA^en notice of taking depositions further north, then I 
was in the hospital: they had beaten me up. Two or three of these 
men Avaylaid me and beat me u]), and my eyes and head and ears Avere 
hurt. I don’t blame them half as much as I do Dimond. He is the 
mayor of Valdez, and he was the man who posted these men who 
waylaid me just as I walked up, while he Avalked aAvay. I am blind 
as a bat, except I can see a little out of my left eye. I am not a 
strong man and it was no trouble for them to beat me up. I was in 
the hospital nearly a Aveek. 

In the meantime, just as I got ready to leav^e there, the officer avIiq 
was in charge of the post there came to me and gave me a letter. I 


WICKEESHAM VS. SULZER (DECEASED) AND GRIGSBY. 109 


want to call your attention to that letter. It is in the record. It is 
in the brief. Here it is at page 78 in the brief. On the thirty-third 
day. on August 80. I might say this resolution passed here July 28, 
passed here and became etfective immediately. It didn’t give me 
one minute’s time to get to Alaska. The minute that resolution 
passed the House, my time began to run; here I was in Washington, 
so I had to take my papers and hurry back to Alaska and get to him 
with the papers before he had any jurisdiction. Those fellows up 
there made objections because they had no papers to show. Before 
I could get to Nome almost 40 days had expired; before I could get 
to Juneau, almost 30 days had expired, and before I got there the 
military officers served me with this notice. I will read the notice. 
[Keading] : 

[War Department, Signal Corps, United States Army, Office of Officer in Charge, First 
Section, Washington-Alaska Military Cable and Telephone System.] 

V.vi.DEz, Alaska, Auitmt SO, 1919. 

From: Oflicer in chargo. 

Sub.iect: Election contest. 

1. Tlie office has received orders in assemble certain men at Valdez, Alaska, 
by September 6, 1919, for the })nri)('se of givin,!; testimony in the Alaska election 
contest. 

2. The following list names the men and shows their present status or station : 
Charles A. Agnetti, Valdez, Alaska; Howard (J. Clifton, Valdez, Alaska ; Herman 
DuIMarce, Fort Liscom, Alaska, under orders to proceed to Paxson, Alaska; 
Kudoli)h EliiKiuist, (k)rdova. Alaska; Thomas F’’. (Iriffith, Valdez, Alaska, under 
■orders to proceed to the United States; Durwood M. Hocker, Fairbanks, Alaska ; 
Alex A. Kott, Seward, Alaska ; .lohn E. Pegues, Fairbanks, Alaska, furloughed 
(o Regular Army Reserve; AVilliam R. Rogers, Valdez, Alaska; Burr ^I, Snyder, 
Valdez. Alaska ; Herman P>. Stenbuck, IMcthirthy, Alaska; Elmer D. Whittle, 
Fairbanks, Alaska; Emil Pains, Valdez, Alaska; (hiai-les R. ('idle, Valdez, 
Alaska; Donald H. Tyer, di.scharged; William .T. Cuthbert, Valdez, Alaska; 
Harry Shutts, Valdez, Alaska; Richard H. L. Noaks, (k)rdova, Alaska, fur¬ 
loughed to Regular Army Reserve. 

3. Information is desired as to whether or not you desire the men ordered 
away held here any longer and whether or not you will desire the men stationed 
on the first section, Washington-Alaska Military Cable and Telegraph System 
.south of Fairbaidvs. Alaska, who are still in the service ordered here. 

Hamner Huston, 

Major, Signal Corps, United States Armp. 

Copy furnished: .Tames Wickersham. Anthony .T. Dimond. 

And the men weren’t there. Liscom, xVlaska, is only four or five 
miles away and could be reached. Cordova, Alaska, is 50 or 75 miles 
away, and couldn’t possibly be reached. The boats weren’t running. 

Mr. Grigsby. Most of those were taken weren’t they? 

Mr. Wickersham. Some of them were. I want to call your atten¬ 
tion especially to that ‘‘Donald H. Tyer, discharged,” and then right 
below that this significant thing happened: 

Q. Did Judge Wickersham make any reply to that communication?—A. Yes. 
JleNvrote me a letter in reply to that. 

Q. Have you that letter?—A. Yes, sir. Here it IS. 

Mr. Dimond then asked him: 

Q. You also addressed me a letter identical in teiTus with the one sent to 
Jiulge Wickersham and introduced as Exhibit B?—A. Yes, sir. 

Q. And I replied to you that Mr. Grigsby did not desire to take the depositions 
of any of these men you have mentioned?—A. Yes, sir. 

Now then, I call your attention to that, because that is the only 
thing the War Department did. On the 33d day they gave me notice 
that tliev were going to assemble these men on or before the 6th 


110 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


day of September, the last of the 40 days provided for by this resolu¬ 
tion, not that they were going to do it then, and at that time I was 
in the hospital. At that time I had given notice to take depositions 
at these places 200 miles away and was waiting for the boat Avhich 
came the next morning. I went—had to go or miss taking those 
depositions, I had been there for 10 days or more, trying to get the 
depositions of these men; had been beaten up by men who repre¬ 
sented them under instructions by Dimond, and we had done every¬ 
thing we could. It seems to me human nature was not capable of 
doing more than we had done to get the depositions of these men. 

Now, I call your attention back to the deposition of Mr. Odle again. 
Here is one of these men that made an affidavit and stuck in (Mr. 
Grigsby may have it) ex parte and without notice to me or anybody 
else. He testified in that matter; he didn’t support me; he voted for 
Sulzer and so did every one that we got on the witness stand except 
Tyer admitted the truth. Tyer the son-in-law of the editor there, 
who had been fighting me for years, were the only ones who testified 
that they voted for me, and he committed perjury. It is a pretty 
hard matter to prove a man guilty of perjury. My attorney knew it, 
and a lot of those “smart Alecks” claimed the}?' voted for me, because 
you couldn’t prove it on hearsay. You don’t know how some of them 
voted. The rule in a case of that kind is very different than if you 
were sitting on a jury trying them for perjury, or any other crime 
or for illegal voting. If you were trying these men under the criminal 
law for violating the election laws, the judge would instruct you 
that you must believe beyond a reasonable doubt from the evidence. 
That doesn’t apply here. They are accused of illegally voting, voting 
in violation of the law, and that is admitted that they voted in viola¬ 
tion of the laAv, and it is admitted by Odle he didn’t support me; all 
of them we could get on the witness stand, testified they voted for 
me, and they voted for Sulzer. 

Now, it is your duty to decide whether they voted for me or for 
Sulzer, under the civil rule. That is to say, if you are convinced from 
the evidence of the case, from a preponderance of the evidence that 
they voted for Sulzer, it is your duty to so find and under the rule 
where men are carried to the polls by a known partisan of the cam¬ 
paign, going with them to vote, and you can’t find out how they 
voted; the rule as adopted by the House of Representatives in that 
kind of a case you must decide that they voted with the party Avho 
carried them to the polls. If, after they vote, a contest arise and 
they are defended by the opposition side, the presumption is that 
they are being defended by the man who didn’t want them to testify 
they voted for him, and it is your duty to so find if the matter is 
fairly presented to you from that light. If, generally, you find them 
consorting together in collusion one Avith another as a body of fellows, 
talking Avith one another, all going up to Amte, they won’t testify 
themselves; the rule is that you are to find, then, that they all voted 
together substantially, and Amted for the man Avho is defending them 
and protecting them. 

Under the rule that ought to guide you, and the rule that does 
guide you, and you Avill find that rule laid down in Rowell very 
fully. No doubt about that. I call your attention especially to 
these soldiers in Yaldez. I did everything I could to take their 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. Ill 


testimony and Mr. Grigsby wouldn’t take their testimony. His at¬ 
torney said he didn’t want to take their testimony. Yes. 1 got the 
testimony of a great many of them, but Mr. Grigsby never made 
the slightest attempt to take the testimony of one of them. He never 
subpoenaed a single voter in Alaska. 

Mr. Grigsby. 1 didn’t attack the legality of their vote. 

Mr. WiCKERSHAM. 1 know that. You say here to this committee 
some of the voters voted for me. Why didn’t you have them called 
in and testify to it? You didn’t dare to do it. You knew and your 
attorney knew that every one of them voted for Sulzer. Every time 
they were called, you and Mr. Sulzer—every time these men were 
called, John Clark, who was Mr. Grigsby’s attorney at Fairbanks, 
or Dimond and his attorney at Valdez, every time these men were 
called they objected and advised them not to testify. 

Mr. Grigsby. Your attorney did that? 

Mr. WiCKERSHAM. Where? 

Mr. Grigsby. At Cordova and Afognak. 

Mr. WiCKERSHAM. A soldier? 

Mr. Grigsby. No ; no soldier, but ineligible voters. 

Mr. WiCKERSHAM. Well, if they did they merely followed some 
bad example that you set. 

Mr. Grigsby. Oh, yes; I suppose so. You took your testimony 
first though. 

Mr. WiCKERSHAM. It don’t make any difference what I did. 
Everywhere I went I asked for men to testify to the truth and the 
whole truth and there was only one man in my presence who testi¬ 
fied to the contrary, and that was that man at Ketchikan, and he 
was mistaken about it. 

Mr. Grigsby. No objection made in my presence. 

Mr. WiCKERSHAM. Well, you are mistaken about that. 

Mr. Grigsby. We will talk about that later. 

Mr. WiCKERSHAM. We are talking about these soldiers and wher¬ 
ever an effort was made made to get their evidence, the strongest 
bar was put up. 

I call your attention to the compilating of authorities in Rowell’s 
Digest of Contested Election Cases at pages 702, 703, and 704. It 
is in the index. 

Mr. Chindblom. On page 91 of your brief? 

Mr. WiCKERSHAM. Yes, sir. Rowell, in his work on contested elec¬ 
tion cases, lays down the rules to be followed, and I ask if Mr. 
Grigsby is correct as to my attorney or agent that the same rule 
be applied to them as to hiin. I don’t ask for one rule against Mr. 
Grigsby and another one to myself. Apply the same rule fairly to 

both. . • . • • 

I am going to read the minority report because it is the minority 
report, and it is the only case of that kind that you will find, and 
it is not the rule and was not adopted by Congress at all. This is 
found on page 702 of Rowell’s. 

This majority report is the rule that I was talking about a while 
ago. That was the contestee and his friends who protected and 
shielded these witnesses and prevented us from getting their testi¬ 
mony. It is because the evidence is against them, and under piese 
rules laid down by the House in that sort of cases we are entitled, 


112 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

when that state of facts is shown, to have their votes counted as for 
the other man. 

That is the case of DeLanoy v. Morgan, Forty-third Congress, and 
I read you the minority report just a moment ago. I have just read 
what was adopted by the House of Representatives. 

Mr. Hudspeth. It wouldn’t be a hard and fast rule in your case? 

Mr. WiCKERSHAM. No, sir. 

Mr. Hudspeth. Because many Republicans were supporting yon 
and many were against you ? 

Mr. WiCKERSHAM. Yes, sir; but when you can show that Foster, 
for instance, was being supported by the other man and doing all he 
could for him, the rule is that he should be considered as having 
voted for the other man. 

Mr. Hudspeth. If that is the rule, if you go up in company with 
a party avIio is a member of the opposite political party, as in my 
case, I was opposed to Avoman suffrage- 

Mr. WiCKERSHAM. But if you come out and shield them and help 
them that is pretty strong evidence. 

Mr. Hudspeth. That is true, but the fact that they accompained 
them is not. 

Mr. WiCKERSHAM. No. If you adopted that rule there is no ques¬ 
tion about all these soldiers, not a bit. Not a bit of question about 
it at all. 

The Chairman. What authority is that? 

Mr. WiCKERSHAM. That is the case of Cook v. Cutts, Forty-seA^enth 
Congress. This is Rowell’s contested election cases. 

Mr. Rowan. I don’t think you need to read any more on that 
point so far as that is concerned. 

Mr. WiCKERSHAM. I liaAC only a little bit more. 

I could go on and cite you authorities on those matters by the 
hour. The authorities are practically all one Avay. We take for in¬ 
stance the AT)te of these three soldiers at Fort SeAvard; this man 
Combs came up to Fort SeAvard Avith an automobile and got a lot 
of soldiers and took them doAvn and voted them. 

We could only find one of them, a man named Donald. He says he 
voted for Sulzer. He named tAvo other soldiers that were taken 
doAvn in this automobile. Tliey Avere all talking and having a good 
time. They said they AAere Sulzer supporters and they AAere being 
herded by the United States marshal Avho aa as supporting Mr. Sulzer. 
The rule is that all of them voted for Mr. Sulzer and the rule is that 
all of these soldiers A^oted for Sulzer, except one avIio voted for me, 
and one Avho Amted—Mr. C\)nnolly didn’t receiA^e any Amtes there and 
therefore that man Amted for me. It is pretty hard to get around 
that. That is my rule, so that all that I caii possibly be charged 
Avith are four of these soldier Azotes and one of them didn’t vote 
for me. There were the AviA^es of several of these soldiers Avho Amted, 
and the evidence shoAvs that at the primary election preceding, they 
A'oted the Democratic ticket and the eA idence sIioavs, and I liaA^e it in 
the record here, that a lot of these soldiers AAdio Amted and refused 
to ansAver voted the Democratic ticket in the previous election, and 
the evidence shows further that this man Noaks voted in 1918, and 
since has been the attorney for Mr. Grigsby, voted for Sulzer. 

Mr. O'Connor. I thought the mathematical process you Avent 
through shoAved that 16 soldiers voted for Sulzer and 7 for’you. 



V/ICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 113 

was Valdez Bay precinct. 

Mr. Cjkigsby. Where in the record does it show that these 40 
soldiers—or is it at one place? 

Mr. WiCKERSHAM. Oil, no; it is scattered all through. 

Mr. Grigsby. I have been unable to find it. 

Mr. WiCKERsiiAM. You will find it. 

Mr. (trigsby. I find where some of them voted. 

Mr. WiCKERSHAM. The record shows how they all voted and their 

have introduced the election register. 

Mr. Grigsby. Are you depending on that? 

Mr. M iCKERSHAM. We are depending on the whole record. We 
don t claim anybody voted in Valdez whose name doesn’t appear on 
the record. 

Mr. Grigsbv. Is the election register in evidence? 

Mr. WiCKERSHAM. Yes, sir. No doubt about that. IVe have in¬ 
troduced a lot of the election records. 

Mr. Grigsby. I haven’t been able to find it and I Avish you would 
demonstrate it. 

Mr. AVickersham. I have demonstrated it in my brief. 

Mr. Chindblom. Have you finished the matter with regard to the 
soldier vote? 

Mr. AVickersham. Not entirely. I have one authority cited by 
Judge AAhlson. 

The Chairman. Can you conclude your soldier argument in a 
short time? 

Mr. AVickersham. Yes, sir. I will promise the committee that I 
will not talk more than to-morrow evening except in rebuttal. 

The Chairman. AATth the suggestion of Judge AATckersham that 
he desires to stop at this time, unless the committee sees fit to ask him 
further questions, the committee Avill be jidjourned until 8 o’clock 
to-morroAv evening. 

(Thereuiion at 11.15 p. m. the committee adjourned.) 


House of Eepresentatives, 

Committee on Elections No. 3, 

Wednesday^ March 31^ 1920. 

The committee met at 8.20 o’clock p. m., Hon. Cassius C. Dowell 
(chairman) presiding. 

The Chairman. Gentlemen, as there is a quorum present and 
we want to conclude Judge AVickersham’s argument to-night, I 
think we should proceed. 

STATEMENT OF HON. JAMES WICKERSHAM, CONTESTANT— 

Continued. 

Mr. AATckersham. Mr. Chairman, I gave the committee a list of 
the persons who either voted illegally for Mr. Sulzer or were pre¬ 
vented from voting -legally for me, and I would like to have it 
put in the record. 

The Chairman. If there is no objection, it will go in. 

181744—20-8 



114 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY 


(The statement follows:) 

Contested Election Case. Wickersham v . Sulzer and Grigsby, 

List of persons who either voted illegally for Sulzer or ivere prevem,ted from 
voting legally for Wickersham, with pages of Record of Depositions, and 
Remarks. 


Name. 


Record pages. 


FRAUDS IN CHARCOAL POINT 
PRECINCT. 


Chas. a. Sulzer. 

George A. Nix. 
A. Van Mavern 
Bert Heath.... 

J. C. Cochran.. 


83.122.126.134.. .. 

122.124.136.587.. . 

134.135.155.568.. . 

123,124,141. 

85,134,137,463,487 


Jew — Taylor 


137 


S. S. Kincaid 


119 


Mrs. J. F. Kincaid 


120 


Remarks. 


Voted at Charcoal Point; resides in Sulzer 
precinct. 

Do. 

Voted at Charcoal Point: resides in Juneau. 

Voted at Charcoal Point; resides in British 
Columbia. 

Voted at Charcoal Point; resides in Lincoln 
Rock. 

Voted at Charcoal Point; challenged and took 
oath. 

Voted at Charcoal Point; not 1 year in Terri¬ 
tory. 

Do. 


FRAUDS IN KETCHIKAN PRE¬ 
CINCT. 


Dudley G. Allen. 

Mrs. Dudley G. Allen 

W. Chapman. 

Wm. Semar. 

Gus. Gillis and wife.. 

Steve. Ragan. 

Mrs. Mae Ragan. 


84,125,130,132,147,150-152... 

152. 

84. 

84. 


84. 

85,127,393-394 
85,127,393-394 


Voted in Ketchikan, resided in Jtmeau. 
Do. 

Voted in Ketchikan, resides in Jimeau. 
Voted in Ketchikan, resides in Sitka. 
Voted in Ketchikan, resides in Juneau. 
Voted in Ketchikan, resides in Haines. 
Do. 


INDIVIDUAL FRAUDS IN 
SOUTHEASTERN ALSAKA. 


E. G. Morrisey. 

J. R. McNeill. 

H. J. Raymond. 

Mrs. H. J. Raymond 

S. Jacobsen. 

Mrs. S. Jacobsen_ 

Joseph A. Snow. 


117, 162, 168_ 

166, 182, 196_ 

196-197, 202. 

196-197, 202. 

182, 198, 202, 247 
182, 198, 202, 247, 
153, 195, 248_ 


Voted at Juneau; resides Fairbanks. 
Voted at Baranof; resides Juneau. 
Do. 

Do. 

Do. 

Do. 

Voted at Kake; resides at Juneau. 


FRAUDULENT SUPPRESSION 
OF ELECTION IN NUSHAGAK 
PRECINCT. 


Thos. Patten. 

Louis England. 

Mrs. L. England. 

John Bergland. 

Mrs. J. Bergland. 

Mrs. Bergland’s sister 

Mrs. Cassivamp. 

Mr. Landberg. 

Adolph Osterhaus... 

Mrs. A. Osterhaus_ 

Hog Harry. 

John Nicholson. 

Mrs. J. Nicholson_ 

Louis Hansen. 

Mrs. L. Hansen. 

Mr. Anderson. 

Mrs. Anderson. 

Bert Johnson. 

Thomas Douglas. 

Gust. Tretsou. 

Mrs. G. Tretsofi. 

Fred Paulson. 

Mrs. Fred Paulson... 

Mr. Bluddy. 

Mrs. Bluddy. 

Thomas Simes. 


76-80. 

76-80, 

76-80, 

76-80. 

76-80. 

76-80. 

76-80. 

76-80. 

76-80. 

76-80. 

76-80. 

76-80. 

76-80. 

76-80. 

76-80. 

76-80. 

76-80. 

76-80. 

76-80, 

76-80. 

76-80. 

76-80, 

70-80. 

76-80. 

76-80, 

76-80, 


Disfranchised by Commissioner French. 
Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 







































































































WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 115 


List of persons who either voted iUepaUii for f^ulzer or were prevented from 
voting legally for Wickersham, etc. —Continued. 


Name. 


CACHE CREEK PRECINCT 
FRAUDS. 


Record pages. 


Remarks. 


Election held between 4 and 
5 a. m. and all voters out of 
the precinct before 8 a. m. 
Names of electors in re¬ 
turns. 


282-294 


Whole election void for fraud: 
Votes cast— 

Sulzer. 

Wickersham. 

Connolly. 


23 

2 

1 


FRAUDULENT SUPPRESSION 
IN FORTYMILE ELECTION 
DISTRICT. 

Walter Hunt. 

W. M. Patterson. 

John A. Lambert. 

T. E. Phillips. 

Hannah J. Johnson. 

C. D. Arnold. 

Henry Siemer.. 

J. A. Kemp.. 

C. B. Ewing.. 

Mrs. J. A. Kemp. 

E. L. Eckstein. 

Geo. A. Pilz. 

A. Lassen. 

John Ostergard. 

Chas. E. M. Cole. 


John Haan. 

Mrs. Agnes Hick. 

George Hick. 

INDIVIDUAL FRAUDS IN 
VALDEZ PRECINCT. 

C. W. Mossman. 

Mrs. C. W. Mossman. 

Jas. E. Mitchell. 

Mrs. J. E. Mitchell.. 

Mrs. C. O. Brauer. 

UNITED STATES SIGNAL 
CORPS, ARMY, FRAUDS. 


Total votes. 


26 


257 

258 

258, 

259 

259, 

260, 
260. 
261. 
262. 
263. 
263. 
2f)4. 
2f)4. 

265. 

266. 

269. 

270. 
270. 


Wade, disfranchised, would vote W. 
Wade, disfranchised, would vote S. 

Wade, disfranchised, would vote W. 

Do. 

Do. 

Steel Creek, disfranchised, would vote W. 
Do. 

Do. 

Do. 

Do. 

Wade, disfranchised, would vote W. 

Do. 

Wade, disfranchised, would vote Socialist. 
Wade, disfranchised, would vote Sulzer. 
Wade, disfranchised, would vote Wicker¬ 
sham. 

Wade, disfranchised, would vote W. 

Do. 

Do. 


161.219.221- 222,271,331 (No. 8 

161.219.221- 222,295,331 (No.83 

221,332, (No. 144). 

221,332 (No. 146). 

221,331 (No. 78).. 


Deputy United States marshal, voted in 
Valdez; resides in Anchorage. 

Wife of above, voted in Valdez; resides in 
Anchorage. 

Resides in Valdez Bay precinct; voted in 
Valdez. 

Do. 

Resides in Valdez Bay precinct; voted in 
Valdez. Canadian. 


Chas. A. Agnetti... 
Wm. T. Barr. 

Ike A. Beal. 

Ed. A. Beattie. 

Jas. W. Boon. 

Jas. M. Campbell... 

H. G. Clifton. 

H. B. Connover_ 

Ralph N. Cummins 
Wm. J. Cuthbert... 
Herman DuMarce.. 

Jas. A. Ellison. 

Rudolph Elmquist. 

Max H. Faust. 

Thos. F. Griffith... 

Guy B. Hawley_ 

D. M. Hocker. 

Alex A. Kott. 

Leo Kraft. 

Emil Lains. 

Jas. P. Lake. 

Dr. W. E. Leonard. 
Phil F. McQuillan.. 
Horace R. Morgan.. 
R. H. L. Noaks. 

Chas. R. Odle. 

John E. Pegues. 


55.226.228.324 . 

55,255. 

55,62-63,226. 

55.255 . 

55,319. 

55.256 . 

55,226,228,326. 

55,253. 

55,252. 

55,226,228. 

55,334,337. 

55,340,600. 

55.324 . 

55,71-6,160,226,233,324. 

55,226,228. 

55 253. 

55,’ 298^301,36i^i6 

55.214.226.228.324 . 

55. 

55,226,228. 

55,319. 

55. 

55,251. 

55,684,707. 

55,161,214,218,226,233,239, i 

240,323,368-72. ' 

55,226,227.: 

55,301-4,309-10.1 


Fort Gibbon soldier; says he voted for Sul¬ 
zer. 

Admits voted for Sulzer. 

Fort Gibbon soldier; refused to answer. 
Nulato soldier; voted for Sulzer. 

Fort Gibbon soldier; refused to answer. 
Refused to answer. 

Sitka soldier; savs he voted for Sulzer. 

Do. 

Refused to answer. 

Voted in Copper Center; every vote Sulzer, 
Voted at Gulkana. 

Valdez soldier; not present when depositions 
were taken. 

Admits he voted for Sulzer. 

Refused to answer. 

Sitka soldier; says he voted for Sulzer. 
Fairbanks soldier; refused to answer; voted 
1916. 

Refused to answer. 

Went to Nome; could not get deposition. 
Refused to answer. 

Nulato soldier; voted for Sulzer. 

Post surgeon (contract); Fort Gibbon. 

Sitka soldier; voted for Sulzer. 

Nulato soldier; affidavit voted for Sulzer. 
Grigsby’s attorney of record. 

Valdez soldier. 

Fairbanks soldier; refused to answer. 






















































































































116 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY 


Lis-t of perstonst irho cither voted ille(faU)i for Sutzer or were preve>nted from 
votivff legally for Wiekerf<hnm, etc. —Continued. 


Name. 


UNITED STATE! SIGNAL CORPS, 
ARMY, FRAUDS—COntd. 

Wm. R. Rodgers... 

R. L. Scearce. 

Louis G. Folk. 

Harry Phutts. 

B. M. Snyder. 

Herman t). Stenbuck. 

C. C. Stroupe. 

Donald H. Tyer. 

H. VanWyck. 

H. G. Wescott. 

E. D. Whittle. 

H. W. Whitman. 


•Tas. B. Looney. 

Henry L. Labisky.. 

Mrs. M. H. Faust... 

Mrs. W. J. Cuthbert 

Mrs. D. H. Tyer_ 

Mrs. Lucy Ellison... 


Record pages. 

Remarks. 

■ 

.55,226,228.T.. 

Editor Fairbanks Citizen, Democrat; refused 
to answer. 

Scearce in China service; could not get depo- 



oo,257. 


55,214,226,228,324. 

55, 226,228, .324. 

.55,.317. 

55,321. 

.55,20.5-8,214,226-8. 

.55,64,71,226,228. 

.5.5,321. 

.5.5,.308-10. 


.55,2.52. 

60-62.. 
63-64.. 


219,32.5,332. 

219,226,229,3.32. 


208-1.3, 214, 219, 226, 228, 2.30, 
.3.31. 

340,600. 


Fort Gibbon soldier; refused to an.swer; 
voted 1916. 

Refused to answer. 

Do. 

Fairbanks soldier; refused to answer. 

Nulato soldier; refused toamswer. 

Fays voted for Wickersham; not true. 

Admits voted for Pulzer. 

Nulato soldier; instnicted not to answer. 

Fairbanks soldier; refused to answer; deposi¬ 
tion lost. . _ , Vi. 

! Sitka; says he voted for Wickersham; doubt- 
ful. 

Seward soldier; admits he voted for Sulzer. 

Southeast Alaska soldier; says he voted for 
Wickersham. 

Capt. Faust’s wife; voted at Democratic 
primarv. 

Wife of Wm. J. Cuthbert; sick (baby) when 
.she “refused to answer.’’ 

Selby’s daughter; voted for Sulzer; refused to 
answer. 

Gulkana; husband and friends for Sulzer. 


SOLDIER FRAUDS AT FORT 
SEWARD, HAINES PRECINCT. 


George E. Do 3 de 


177-80 


Sidney Gro.ss.. 
Soldier Wilson 


177-80 

177-80 


Voted for Sulzer b^’ United States Deputy 
Marshal Coombs. 

Do. 

Do. 


SOLDIER FRAUDS, VALDEZ 
BAY PRECINCT. 


Fred C. Hartman.. 

C. A. Edmund. 

H. M. Lawrence_ 

E. C. Rueter. 

Jerry T. Allen. 

Pete Tessitore. 

John Turner. 

Charles Wyatt. 

J. D. Chanfiberlain. 

Frank Forker. 

John T. McEvay... 
Patrick McDermott 

Frank Poore. 

Claude H. James... 

Eric Myhberg. 

A. J. P'enttinen_ 

Lysle D. Browm... 

A. E. Rucker. 

Joseph Newman... 

E. A. Johnson. 

R. B. Hamilton_ 

Fred C. Brether.son. 

A. J. Davis. 

Mrs. J. W. Johnson, 
Dr. J. W. John.son. 
George F. Baker... 

TI. T. Anderson_ 

Wm. N. Hoaring... 

Bruce Rider. 

P. S. Truckey. 

A. B. Pre.sley. 


216.222.2.38.241- 4,329, .593.... 

216.222.238.241- 4,329,593.... 

216.222.2.38.241- 4,329,59.3.... 

216.222.238.241- 4,329. .59.3.... 

216.222.2.38.241- 244,329, .593.. 

216.222.238.241- 244,329, .593.. 

216.222.238.241- 244,329, .593.. 

216.222.2.38.241- 244,329, .593.. 
216,222, 2.38,241-244,329, .593.. 

216.222.238.241- 244,329, .593.. 
216,222, 2.38,241-244,329, .593.. 
216,222,238,241-244,329, ,593.. 
216,222, 238,241-244,329, .593.. 
216,222, 238,241-244, .329, .593.. 

216.222.238.241- 244,329, .593.. 
216,222,2.38, 241-244,329, .593.. 

216.222.238.241- 244,329,593.. 

216.222.238.241- 244,329, .593.. 
216,222,2.38, 241-244,329, .593.. 

216.222.238.241- 244,329,593.. 
216,222, 238,241-244,329, .593.. 

216.222.238.241- 244,329, .593.. 

216.222.238.241- 244,329,593.. 

216.222.238.241- 244,329, .593.. 

216.222.238.241- 244,329,593.. 

216.222.238.241- 244,329, .593.. 

216.222.238.241- 244,329,593.. 

216.222.238.241- 244,329, .593.. 

216.222.238.241- 244,329, .593.. 

216.222.238.241- 244,329,593.. 
216,222,238,241-244,329,593.. 


Conscripted soldier; Fidalgo Bay. 
Conscripted soldier; Copper River region. 
Conscripted soldier; I.aTouche. 

Conscripted soldier; Valdez. 

Regular soldier. Fourteenth Infantry. 
Conscripted soldier, Treadwell. 

Conscripted soldier. Copper River region. 
Do. 

Conscripted soldier. Anchorage. 

Conscripted soldier, Kodiak. 

Regular soldier, Fourteenth Infantry. 
Conscripted soldier; place not knowm. 
Conscripted soldier from Kemiecott. 
Conscripted soldier somewhere in Alaska. 
Conscripted soldierfrom Kennecott. 

Regular Army soldier. 

Conscript, McCarthy, judge of election. 
Conscript, Valdez, judge of election. 

Regular Armj'^ soldier. 

Conscript from Cordova. 

Regular Army soldier. 

Conscript from Cordova. 

Conscript from Katalla. 

Wife of post surgeon; residence Sitka. 

United States Army surgeon; residence Sitka. 
Con.scriptfrom Anchorage. 

Conscript from Katalla. 

Conscript from Anchorage. 

Conscript from Valdez. 

Conscript Copper River region. 

Conscript La Touche. 


CIVILIANS AT FORT LISCUM 
•WHO VOTED, LEGAL VOTES. 


Ed. P. Cashman_ 

Mrs. E. P. Cashman 

Sam. Campbell. 

W. S. Beck. 

W. T. Stuart. 


215-217 

217-218 

237- 238 

238- 239 
2.39-240 


Voted for Wickersham. 
Do. 

Do. 

Do. 

Voted for Sulzer. 































































































WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 117 


lAf^t of persons who either voted iUe(/ally for Sulzer or were prevented from 
voting legally for Wickersham, etc. —Continued. 


Name. 


Record pages. 


BRIBERY AND FRAUD AT 
COPPER CENTER PRE¬ 
CINCT. 


Remarks. 


(See pp. 111-115 contestant’s 
brief.) 

Charles Cowell. 

T. R. Glass. 

A lave Larson. 

C. W. Littlejohn. 

J. B. Pippin. 

John McCrary.. 

M. F. Griffith. 

James Mauke.. 

Herman DuMarce.. 

W. R. Cameron. 

HYDA INDIAN RESERVATION 
FRAUDS. 

Paul Morrison. 

Sidney N. Carle. 

Peter Nathan. 

R. Edenshaw. 

Charles Scott. 

Jack Edenshaw. 

Boyd Nakaptla. 

Luke Frank. 

Alex Peele. 

Joseph Nix. 

I. «ouis Tom. 

Mike George. 

R. D. Nathan, jr. 

Richard Nix. 

Adam Spoon. 

Jim Wallace. 

William Peele. 

Walter Frank. 

KLAWAK INDIAN RESERVA¬ 
TION FRAUDS. 

Thaddenes Isaacs. 

George Demmert. 

R, J. Peratovich. 

J. K. Williams. 

C. P. Wilson. 

Johnnie Wilson. 

Jack Peratovich. 

Sam Gunyah. 

C. W. Demmert.,. 

Peter Annisket.i. 

Wm. Stewart. 

R. D. Collins. 

Frank William. 

Arthur James. 

Clyde Fields. 

Tecumsa Collins. 

John W. Anniskets. 

Sam Davis. 

Lee Annisket. 

Maxfield Dalton. 

Will Skulka. 

John Skulka. 

Albert Natkong. 

Edwin Scott. 

Frank Paul. 

Charlie Brown. 

John Brown. 

AUK INDIAN VILLAGE 
FRAUDS. 


334,337,602-695, 707-708 

334.337.692- 695, 707-708 

334.337.692- 695,707-708 

334.337.692- 695, 707-708. 

334,337,692-695, 707-708. 

334,337,692-695, 707-708. 

334,337,692-695, 707-708, 

334,337,692-695, 707-708. 

334.337.692- 695, 707-708. 

334.337.692- 695,707-708. 


106, 440, 453, 470 
106, 440, 453, 470 
106, 440, 453, 470 
106, 470, 574-575. 
106, 440, 453, 470 
106, 440, 453, 470. 
106, 440, 453, 470. 
106, 440, 453, 470. 
106, 440, 453, 470. 

106, 470. 

106, 470. 

106, 470. 

106, 470. 

106, 470. 

106, 470. 

106, 583-587. 

106, 440, 453, 470. 
106, 576-583, 470. 


106,184,187,415, 418,424,473. 

106,184,187, 415, 418, 424,473. 
106, 184,187, 415, 418,424,473. 

106,184,187, 415, 418, 424, 473. 

106,184,187, 415, 418, 424, 473 

106,184,187, 415, 418, 424, 473 

106,184,187, 415, 418, 424, 473 
106, 184, 187, 415 418,424, 473. 

106,184,187, 415 4 I 8 , 424, 473. 

106,184,187, 415, 418, 424,473. 
106,184, 187, 415, 418, 424, 473. 
106, 184,187, 415, 418, 424, 473. 

106,184,187, 415 418, 424, 473. 
106,184, 187, 415, 418, 424, 473. 
106, 184; 187, 415, 418, 424, 473. 

106,184,187, 415, 418, 424, 473. 

106, 184,187, 415, 418, 424,473. 

106,184,187, 415, 418, 424, 473. 

106,184,187, 415, 418, 424, 473. 

106,184,187, 415, 418, 424, 473. 

107, 108, 184, 193. 

108, 193. 

108, 193. 

108, 193. 

108, 193, 419. 

107, 194, 419. 

107. 


Recommended Glass for postmaster; p. 374 . 
Postmaster at Copper Center; p. 374. 


Soldier, United States Army; Signal Corps 
p. 55,record. ' 


Voted in Sulzer precinct; par. 6, p. 10 , record.. 
Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Voted in Sulzer precinct; says did not vote,, 
p. 578. 


Voted at Craig; resides at Hydaburg. 

Voted at Craig; par. 6, p. 10, record. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Hydah, voted at Craig; par. 6, p. 10, record. 
Do. 

Do. 

Do. 

Do. 

Indian resides at Tokeen; voted at Craig;. 

par. 6, p. 10, record. 

Hyda. 


George Ed. Martin 
Albert Samuels... 
Herbert Martin... 

Billy Martin. 

Tilly Martin. 

Pete Smith. 

Frank Peters. 


184, 186, 193, 401. 

184, 401. 

184, 401. 

184, 186, 193, 401, 658, 

184, 401, 657. 

184, 401. 

184, 401. 


Voted at Juneau; Sulzer; p. 635. 


Sulzer, p. 658; see par. 10, p. 11, record. 
Sulzer, p. 657; see par. 10, p. 11, record. 
See par. 10, p. 11, record. 

Do. 
























































































































118 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY 


List of persons who either voted illepally for Snlzer or were prevented from 
looting legally for Wicker sham, etc. —Continued. 


Name, 

Record pages. 

Remarks. 

AUK INDIAN VILLAGE 


• 

FRAUDS—cont inued. 



Willie Peters. 

184,186.192, 402, 619. 

Sulzer, p. 666; see par. 10, p. 11, record. 

Do. 

Francis Joseph. 

184; .397, 402'..... 

Charlie Gray. 

184; 186; 192, 664. 

Sulzer, p. 664; see par. 10, p. 11, record. 

Do. 

George Howard. 

184, 401. 

Jack Gamble. 

184'.. 

Do. 

Charlie Bobb. 

184. 

Do. 

Jimmie Hanson. 

184. 

Do. 

George Gamble. 

184, 401. 

Do. 

Char’ie Peters. 

184; 186, 193, 401, 651. 

Sulzer, p. 652; see par. 10, p. 11, record. 

James Miller. 

184. 

Do.' 

John Harris. 

184, 401. 

Do. 

Harrj^ Anderson. 

184; 397, 402. 

Do. 

Charlie Gamble. 

184; 401'.. 

Do. 

DOUGLAS INDIAN VILLAGE 


FRAUDS. 



Jimmie Fox. 

169, 173, 186, 191, 398, 655_ 

Douglas, Indian town; voted for Sulzer, p. 

Daniel Josephs. 

173, 186, 190, 398, 659. 

656. 

Voted for Sulzer, p. 660. 

Voted for Sulzer, p. 663; see par. 9, p. 10, rec- 

Gilbert Jackson. 

169; 173; 186, 190; 398, 662.... 

Wm. Bradv. 

170, 173, 186, 191. .398. 

ord. 

Voted for Wickersham. 

Edw. Marshall. 

170; 17 . 3 ; 186; 191, 398, 660.... 

Voted for Sulzer, p. 660. 

John Willis. 

170, 173, 186, 189, 398, 652.... 

Voted for Sulzer, p. 654. 

John Harris. 

170, 173, .398. 

Challenged, but took oath and voted. 

MISCELLANEOUS FRAUDS. 


John Probst (for Wicker- 

276, 279-281. 

Ballot box removed from polls, Chickaloon 
precinct, to get sick man’s vote; Probst 

sham). 


Frank Kelley (for Sulzer)... 

276, 279-281. 

could not go back, and so lost vote. 

Ballot box, books, etc., carried to his house. 

Olaf Thoransen. 

410, 411. 

Challenged, swore in to vote, but refused; 
voted for Wickersham. 



AUSTRALIAN BALLOT 
FRAUDS. 



Frauds in 8 precincts. 

790, p. 11, record. 

In precincts of Hadley, Kake, Loring, Tena- 
kee, Tokeen, Windham, Chisana, and Ni- 
nilchik. In these precincts Sulzer had 67 
votes and Wickersham 37: loss, Sulzer, 30. 
laukea v. Kalonianolle, 59 Cong. Moores, p. 
30. See par. 11, p. 11, record. 

KUSKULANA PRECINCT 

FR VUDS. 

[Par. 21, Notice of contest.] 


Testimony. 

16,373... 

Donohoe explains the matter at p. 375. 

Created 2 voting places in one precinct. 

Protest attornej'^s for con- 

790. 

testant. 




Williams Potter, 114 Ill., 628; Snowfall v. 
People, 147 Ill., 260 (268.) Compare with 
action at Sour Dough precinct. Charge 20, 
p. 15. Rowell,, p. 752; 40th and 43d Cong.; 



Rowell, p. 678, 48th Cong. 

NAKNEK PRECINCT FRAUDS. 



Par. 18, p. 1.5, record 

Evidence in support in official returns. 
Solid for Sulzer. No official ballots. Why. 



UNALASKA AUSTRALIAN 
BALLOT FRAUDS. 


Fraud charged. 

Par. 17, n. 14, record... 

Evidence in Unalaska returns. 

FRAUD-S IN VOTING “'NY- 


WHERE IN DIVISION.” 


* 

Fraud charged. 

6, par. 9, record. 


Grigsby guilty. 

Walker. 

546-.547. 

36,3-364. 

Party to the stipulation; Attorney General. 

Foster affidavit. 

36.7-366. 

Hudson told Foster in advance. 

Spencer. 

719-720. 


Thirty-seven votes were cast in Valdes Bay precinct (p. 329) ; 5 votes were 
legal; 31 votes were illegal, as follows: For Connolly, 1 illegal vote; for Siilzer, 
23 illegal votes; for Wicker sham, 7 illegal votes; 31 illegal votes. 














































































WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 119 


Mr. WicKERSHAM. I have also a list prepared showing the list 
claimed by the contestee who have voted illegally for me, and I 
would like to have that go into the record. 

The Chairman. If there is no objection it will go in. 

(The statement follows:) 

Contested Election Case of Wickersham v. Sulzer and Grigsby. 

TAst of persons claimed hy contestee to have voted illegally for contestant. 


Name. 

Record page. 

Remarks. 

Mrs. Hans Hanson. 

360. 

Voted for Wickersham; only 6 months in 
Alaska. 

Voted for Wickersham; not citizen of United 

Gust Cozakes. 

361. 

Wm. Zacharias. 

363, 366, 347, 547, 719. 

States. 

Voted at Cordoya; residence. Brooks; hear- 

Mrs. Wm. Zacharias . 

363, 366, 719. 

say. 

Do. 

J. C. Lemoin. .. 

363, 366, 547, 719. 

Do. 

J. B. Hudson. 

363 , 366, 547 ; 719. 

Do. 

Al. Ravnor. . 

364, 366, 547, 719. 

Do. 

-Stokes. 

364, 366, 547, 719. 

Do. 

-Hyde. 

364, 366, 547, 719. 

Do. 

Foster’s affidavit-- 

366. 

Not evidence in case. 

Arthur Pinkers. 

366. 

Did not vote for Wickersham. 

Wm. R. Gerrie. 

377, 689. 

Not a citizen of United States. 

Ivan Derenoff. 

382, 689. 

Voted for Wickersham; citizen by treaty 1867. 

Matfey Agick.. .. 

383, 689. 

Do. 

Alex.'NekrasofF 

383, 689. 

Do. 

Michael Boskofsky 

384, 689. 

Do. 

Alex. Lukin.. . . . 

385, 689. 

Do. 

Paul Nekasoff. . .. 

386, 689. 

Do. 

Sergay Sheratine 

387, 689. 

Was not asked for whom he voted. 

Timsfrey Naya 

388, 689. 

Voted for Wickersham; citizen by treaty 1867. 

Simeon Berestoff 

388, 689. 

Do. 

John Tanshwak 

389, 689. 

Did not vote. 

W. H. Hannnrn 

458. 

Question of residence at Ketchikan. 

Mrs. Ida Hannnm 

462. 

Do. 

Charles Starish 

465. 

Indian; resides at Saxman; voted at Charcoal 

Jimmie Starish 

468 . 

Point. 

Do. 

Sam Olson. 

480 . 

Voted for Wickersham, Kasaan; resides at 

Ben Ridley . 

493, 587. 

Ketchikan. 

Voted for Wickersham; citizen; property; 

Georce Booth 

497. 

legal voter. 

Voted for Wickersham; resides at Ketchikan; 

Henrv Schaffir 

502. 

citizen. 

Voted Democrat; refused to state. 

T.oiiis Hudson 

505. 

Resident of Ketchikan; citizen. 

Geo. .Tohnson 

508, 587. 

Resident of Ketchikan; citizen; property. 

.Timmie Starr 

511, 587. 

Do. 

Matt. Faweett 

514, 587. 

Resident of Ketchikan; bom in British Co- 

Paul Mather 

516, 587 . 

lumbia; property. 

Naturalized citizen; property. 

Caspar Mather 

520, 587..’. . 

Do. 

-Toe .John 

522, 587 . 

Resident of Ketchikan; citizen; property. 

F, R. Ridley 

526’, 587 . 

Do. 

Merrnari Ridley 

526, 587 . 

Do. 

Joe Starr 

527 ; 587 . 

Do. 

Ceorve Feeean 

529 . 

Do. 

r}eo -Tames 

531 . 

Do. 

Mark Williams 

568 . 

Resided at Saxman; voted at Charcoal Point. 


574, 575 . 

Indian from Hydaburg; Sulzer, 575. 


576', 578 . 

Do. 

Tim 

583' 586 . 

Indian from Hydaburg; voted for Sulzer, 586. 

TT W Rrnwn 

636' . 

Moe says voted at Fairbanks; resides at 

\/fc4rtin Clnich 

636 637, 680 . 

Brooks; hearsay. 

Question of residence; hearsay. 


637_ . 

Do. 

TA T. rirppn 

637 . 

Do. 


638, 682. 

Do. 


638'. 

Do. 


639 . 

Do. 


410,411. 

Ballots not counted; challengedf p. 411. 



— 


Mr. AVickersham. Now, Mr. Chairman, I also have here a copy 
of Judge Mllson’s opinion, and I will leave it with the connnittee. 
The Chairman. Do you want to put that into the record. 























































































































120 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


J^Ir. Wk'kersham. Not Avithout you think it ought to go into tho 
record. 

The Chairman. We aauII have access to it. 

Mr. WiCKERSHAM. Yes. It is a public document, and there are 
plenty of them, of course, so that there is no difficulty about that. 

Now, Mr. Chairman, I have got to the end of the soldier matter, 
except that I want to call the attention of the committee to the 
opinion mentioned by Judge Wilson in his report. It is in the Penn¬ 
sylvania reports, but you can get it from the Pennsylvania reports as 
well as I can. 

Mr. Hudspeth. Before you go into that, will you permit me to 
ask you a question here ? 

Mr. WiCKERSHAM. Yes. 

Mr. Hudspeth. I think it Avould have some bearing on this ques¬ 
tion. The question is Avith reference to the question of your taking 
testimony up there. As I recall it, last night you stated that you 
were beaten up, that you were assaulted ? 

Mr. WiCKERSHAM. Yes. 

Mr. Hudspeth. By or through the adAUce or connivance of a man 
by the name of Himond ? 

Mr. WiCKERSHAM. Yes. 

Mr. Hudspeth. MTio Avas attorneA^ for Mr. Grigsby ? 

Mr. WiCKERSHAM. Yes. 

Mr. Hudspeth. Noav, what do you base that statement on, that 
Dimond Avas the instigator of that assault ? 

Mr. WiCKERSHAM. Well, I based it upon the fact that as I crossed 
the street diagonally to where these men were Avaiting for me, 
before I got to them he was talking with them, and from his testi¬ 
mony and from their testimony, they Avere calling me foul names; 
he saAv me coming to them and Avas standing there listening to these 
assaults of language on me; then, just as I got close to them, he 
turned and Avent away. 

Mr. Hudspeth. Was he present and saw them assault you? 

Mr. WiCKERSHAM. He turned and walked away so that his back 
was to us. He walked doAvn the street a hundred feet before he 
turned around, or his attention Avas called, as he says. He denies 
it. But his actions have been so partisan, so ugly, so vicious all the 
Avay through that I haA^e no doubt that he kneAv those men Avere there 
Avaiting for me. One of them Avas partly in the house, Hayden, and 
the other Avas standing out, and I did not know either one of them 
as I came up to them; just then the younger one of the two—the 
son—came up to me and said something to me—said that I had in¬ 
sulted his sister. I was astounded. I did not knoAV who it was, 
and did not know AVhat it meant or anything. I replied, “ No; I 
have not done anything of the kind.” “ Yes, you havT. I am go¬ 
ing to beat you,” and he struck me. Just then the other one bounced 
out, and he called me all the foul names that he could think of. 
I am blind in my right eye, totally, and partly in my left eye. But 
as long as I could see this felloAV I could defend inyself; but just 
then the other one struck me from the blind side and knocked me 
oif the sidewalk, and then assaulted me and beat me up. That is in 
the record. 

Mr. Hudspeth. There is no evidence that Mr. Grigsby had any 
connection with that? 


.WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 121 


Mr. WiCKERSHAM. Not at all. Mr. Grigsby was not there. But I 
have no doubt that this man, Mr. Grigsby’s attorney, knew all about 
it. lie was mayor of the town. He made no pretense of doing any¬ 
thing about it except Avhen he came there, and took one off, laughing, 
and left me there to be taken to the hospital. 

This^ young fellow, it turns out, was the brother of Mrs. Tyer. 
Mrs. Tyer was examined before the notary public by me. I asked 
her questions and I treated her just as nice as I kneAV how. There 
was not anything ugly in any shape, manner, or form. Her hus¬ 
band sat there all the time. He never said a word. He was a big, 
strong soldier. There was no trouble between us at all. But this 
was what really got them started. She went home and began cry¬ 
ing because I said that I was going to hold them there until the 
next boat because I wanted to take further testimony. He had 
testified as my witness and everybody told me he had testified falsely 
that he had voted for me. We were satisfied that he did not, and 
I wanted to hold him until the next day to get further testimony, 
and slie wanted to go home; she began to cry, and then they came 
doAvn and Avaylaid and assaulted me; this man, Dimond, Avas there 
with them. 

Mr. Grigsby. You say he led one of them aAA^ay after the fight 
Avas OA^er? 

Mr. WiCKERSHAM. Yes. 

Mr. Grigsby. You are sure about that? 

Mr. WiCKERSHAM. I am not sure about that. I am only sure that 
he said that he came there and took the young fellow by the arm, 
and thev did walk off just about the same time I went. 

Mr. ftuDSPETH. No effort Avas made to prosecute them? 

Mr. WiCKERSHAM. I stood no more shoAA^ in that community than 
a revenue officer does doAvn in Georgia, not a bit. 

Now, I call the attention of the committee to the facts of this 
case of Taylor v. Beading, which is quoted by Judge Wilson in his 
opinion, and it is in the Fourth BreAvster (Pennsylvania), and I call 
the attention of the committee to it because it is the decision of the 
committee of the House of Bepresentatives, and it is in the Pennsyl¬ 
vania reports, but is the decision of the House of Bepresentatwes 
on the contested election case. It is page 447 that I am going to 
read from. The committee here says in this report [reading] : 

It is in proof that 20 soldiers of the United States Army, stationed at 
Frankford Arsenal, voted for the incumbent in the eighth precinct of the 
twenty-third Avard. Had tliese men a riglit to vote there? It is entirely imma¬ 
terial'to discuss the question as to whether they could liave A^oted elseAvhere 
or not. The only question before us is as to Avhether they Avere entitled 
to vote at that particular poll, Avhere the vote AA'as actually cast. To entitle 
a person to vote at any poll in Pennsylvania, under the laAvs of that State, 
he must haA^e at the time of the election an actual residence in the precinct. 
Mere personal presence Avill not fultill the requirements of the laAV. There 
must be a residence, and it has been Avell settled that residence is a question 
of intention. Had any of those men any intention to he at that particular 
place or in that particular precinct, on that or any other day? From the 
necessity of the case thej" could not. They AA’ere in that ])recinct not by their 
OAvn volition, hut by command of their military superiors. An order issued 
to transfer them to Fort bafayette on October 1 Avould haA’e taken them far 

away from the precinct. ,. i 

In the case of BoAven r. Given it Avas expressly decided that an enlisted man 
did not gain a residence under similar circumstances. So, too, in the case^of 
HoAvard v. Cooper (86 Cong., Contested Election Ceases, 1S34 to 1865, p. 275) 


122 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


It was held under the law of ^lichisaii that to he entitled to vote a man must 
have come into the State and townshij) or ward with the intention of makinj? it 
his permanent residence, and the law of Pennsylvania is quite as strict on this 
point as that of any other State, for if challensod at the polls the person offer¬ 
ing? the vote must also himself swear that his bona fide residence in pursuance 
of his lawful calling? is within the district. (See Pardon’s Digest, Laws of 
Pennsylvania, edition of 1853, p. 28G and p. 46). How coidd a man so swear 
when he is there at the command of a power superior to his own will? As 
bearing particularly upon this i)oint we add that in 1862 a contest arose in the 
State of Pennsylvania in regard to the right of soldiers to vote in camp or 
in quarters. In the trial of this ca.se the constitution of Pennsylvania and the 
several statutes of the State regulating this subject or question were fully 
and elaborately considered. The case is entitled Chase r. Miller, and rej)orted 
in 5 Wright, 403, et al. 

Now, that case is also here, and these are the two cases Judge AVil- 
son relies upon in part at least in his opinion. 

The Chairman. Was the other case a case of the Supreme Court 
of Pennsylvania? 

Mr. WiCKERSHAM. The other is the Supreme Court of Pennsyl¬ 
vania. This, however, is a case arising in the House of Representa¬ 
tives. [Reading:] 

The supreme court of the State held : 

First. That re.sidence in the con.stitution is the same as domicile—the place 
where a man establishes his abode, makes the seat of his proi)erty, and exer¬ 
cises his civil and political rights. 

Second. The right of a soldier to vote under the constitution is confined to 
the election district where he resided at the time of his entering the military 
service. 

The opinion in this case, which is quite lengthy, and covers the entire ground, 
was delivered by Woodward, judge, and from it we quote. (The court below 
had decided in favor of the soldier’s right to vote, and his judgment was being 
reversed by the Supreme Court.) 

The learned judge deprecates a construction that shall disfranchise our 
volunteer soldiers. It 'strikes us that this is an inaccurate use of language. 
The constitution would disfranchise no qualitied voter. But, to secure the 
purity of election, it would have its voters in the place where they are best 
known on election day. If a voter voluntarily stays at home, or goes on a 
journey, or joins the Army of his country, can it be said the constitution has 
disfranchised him? Four of the judges of this court, living in other parts of 
the State, find themselves on the day of every Presidential election in the 
city of Pittsburgh, where their official duties take them and where they are not 
permitted to vote. Have they a right to chai*ge the constitution with dis¬ 
franchising them? Is it not the truth rather than this, that they have volun¬ 
tarily assumed duties that are inconsistent with the right of suffrage for the 
time being? 

Mr. Grigsby. Is that the court’s opinion? 

Mr. WiCKERSHAM. That is the latter part of the. court’s opinion. 

Mr. Grigsby. Did they not count the soldiers’ votes in that elec¬ 
tion ? 

Mr. WiCKERSHAM. If you find it does not lay down the rule as I 
have said, you will call it to the attention of the committee. 

Mr. Grigsby. What is the title? 

Mr. AVickersham. Taylor v. Reading. 

Now, I want to call the committee’s attention to one other matter 
which Mr. Grigsby has got in his brief, and that is sections 1859 and 
1800 of the United States Statutes. He thinks that sections 1859 and 
1860 have some influence in this case about the law, and he has cited 
them in his brief, and they were cited in the other case, they were be¬ 
fore Judge AAulson in the other case, so that the matter is not new. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 123 


But I want to call it to the attention of the committee here, and I want 
you to remember that the act of Congress in 1906 fixes the qualifica¬ 
tions of electors in Alaska, and fixes them altogether different from 
what these two sections fixes them. 

Section 1859 has nothing to do with the situation, Mr. Grigsby 
says that these are general provisions whicli relate to all Territories 
organized after the passage of these laws. These laws are in the 
statutes of 1878. They are all Territorial statutes which were in 
effect long before the act of 1906, which is exclusive, was passed. 

Section 1859 provides that “ every male citizen over the age of 
21 ”—now then, listen to this: “ Including persons who have legally 
declared their intention to become citizens of any Territory hereafter 
organized and who are actual residents of the Territory at the time of 
such organization shall be entitled to vote at the first election of such 
Territory.” 

That has nothing to do with this case at all—“ and to hold any 
office therein; subject nevertheless, to the limitations specified in the 
next section.” 

Xow, that only refers to the election held in a Territory. This is 
the sixth election; so even from this standpoint it has nothing to do 
with that; and if that section should be taken as having any effect 
in Alaska, it would let people vote on their first papers, which we, of 
course, can not do in Alaska because the statute expressly provides 
that we shall not. 

Section 1860 provides that [reading] : 

At all subsequent elections, however, in any Territory hereafter organized 
by Congress, as well as at all elections in Territories already organized, the 
qualifications of voters and of holding office shall be such as may be prescribed 
by the legislative assembly of each Territory. 

Xow, Mr. Grigsby thinks that the Territorial legislature for that 
reason has the right to fix the qualifications of voters. That is, he 
has written his brief upon that assumption, I suppose, although he 
has held, to the contrary, that the Territorial legislature has no 
such authority. He sent an opinion to the governor, which is before 
this committee, that the Territorial legislature is utterly without 
jurisdiction to change the qualifications of electors as fixed by the 
act of 1906, but “ subject, nevertheless, to the folloAving restrictions 
on the poAver of the legislature, namely, first,” the right of suffrage 
and of holding office shall be exercised only by citizens of the United 
States aboA^e the age of 21 years, and by those aboA^e that age who have 
declared on oath, before a competent court of record, their intention 
to become such and by taking an oath to support the Constitution 
and the Government of the United States. 

XoAV, nobody on his first papers can Amte in Alaska, because the act 
of 1906 expressly declares that he must be a citizen of the United 
States; and nobody does vote; and one of the Azotes that was cast 
out as against me at the last election Avas a man by the name of 
Forson, or something of that kind, who had been in Alaska for 20 
years but only had his first papers. Mr. Wilson threw out his vote. 
I conceded that it Avas right, because he Avas not a citizen of the 
United States. That is Avhat this act has reference to. This act 
does not touch our situation at all. It is an old act which Avas super¬ 
seded by the act of 1906, which expressly fixes the qualifications of 
A'oters in Alaska, and is exclusive. 


124 WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Now, the third subdivision here provides [reading] : 

Every officer, soldier, seuiiiaii, mariner, or otlier jiersoii in the Army or Navy, 
or attaclied to troops in the sei'vice of the United States, sliall he allowed to 
vote in any Territory, hy reason of heinj; on service therein, unless such Terri¬ 
tory is, and has been for the period of six months, his permanent domicile. 

Now, Mr. Grigsby seems to intimate, at least, that that is in effect 
in Alaska, but it is not, because it is excluded by the third section 
of the act of 1906, which provides for the qualification of electors, 
and it is exclusive. And I want to call your attention to this matter 
now, if the clause ever had any effect in Alaska all, which it had 
not, under this clause if a soldier came into Alaska and was dis¬ 
charged the next day after he got there, which is sometimes done, 
and he remained six months, and the election Avas the next day, he 
could Amte. But the statute of 1906 says that he must haA^e been in 
the Territory for a year, and it is exclusiA^e, and this hiAv has no 
force or effect in Alaska at all. 

It is one of those old statutes Avhich provided in general terms for 
the government of the Territory before our act of 1912 Avas passed. 
So that it is absolutely of no A^alidity in Alaska. 

Noav, Mr. Chairman, the next question I aa ant to call to the atten¬ 
tion of the committee is that there Avas a fraud in the use of the 
Australian ballot in certain precincts in Alaska. 

The act of 1915, Avhich I think is void, provides for the issuance 
of an official ballot by the clerk of the court to be sent out to all of 
the commissioners in the election precinct and to be distributed by 
them with the paraphernalia to the officers of the A^arious precincts 
and districts. Those official ballots are made up for the electors by 
the clerks of the courts, printed by the clerks, and sent out to the 
governor. The act of 1915, under which they are issued, provides 
[reading] : 

Sec. 3. The ballots shall he headed '‘OfUcial ballots” of the judicial division 
in which it is issued, and at the top thereof, above a perforated line, shall be 
duplicate stubs bearing consecutive numbers; one of said stubs to be re¬ 
tained by the election judges upon presenting the ballot to the voter; the other 
stub to be torn from the ballot by the election judges and compared and retained 
upon the return of the voter from the voting booth, and each official ballot 
shall contain under the title of each office one blank space for as many can¬ 
didates as may be voted for to till such office, below the printed names of 
candidates, upon which may be written names of candidates or per.sons whose 
names are not printed upon the ” Official ballot.” The clerk of the court shall, 
in preparing said ballot, provide space in conformity with this act for the 
names of candidates for any additional offices which may hereafter be created 
for the Territory. 

Noav, to make a long story short, in several of these })recincts 
Avhich Ave have set out here and to Avhich objection Avas made at the 
time of the canvass of the returns, this hiAv Avas not complied Avith. 
The protest, found in the record of the canvassing board, made by 
my attorneys is [reading] : 

The records before the hoard will show that there are in the lirst division six 
precincts in which the ballots nre void for the i-eason above stated, and in the 
third division there are two such precincts. The precincts referred to are the 
following: In the tirst division, Hadley, Kake, Loring, Tenakee, Tokeen, and 
AVindharn. In the third division, Chisana and Ninilchik. 

Noav, this is what happened. Official ballots AATre handed out to 
voters in that precinct, and they retired and marked them up, and 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 125 


when they were passed out the official did not tear off this part of the 
perforated stub at the top Avith the number on it. He left it out 
there. The voter took his ballot and brought it back, and it AA^as 
doubled up and put in the ballot box, then he Avas registered, and 
the registering and numbering aauis chronological. These ballots are 
numbered chronologically, and they are not the same number that 
is given to his name in the record, but by tracing them doAAui in that 
AA’ay you can locate every man A\ho votes in those precincts. That 
laAA’ AA^as not complied Avith, and there is objection made to the votes 
in these precincts for that reason. 

The Chairman. Judge, your claim is that it AA^as not necessary to 
comi)ly Avith this statute ? 

Mr. WiCKERSHAM. It AA’RS iiot necessaiy in HaAA^aii, either. Noav, 
here is the HaAAuiiian decision, lauken v. Kalanianaole. This A^ry 
(jnestion aa as passed on in a case not nearly as strong as mine, because 
our territorial hiAA^ did require these things to be done, did require the 
secrecy of the ballots to be i)reserA"ed, did require that stub to be 
torn out AAdien it aauxs given to the voter, and required the other stub 
to be torn out Avhen it Avas sent back, so that nobody could tell hoAv 
he voted, so that the ballot could be compared Avith the registry 
number, not to determine Avho voted in that Avay, but by leaving those 
tAvo on there and comparing them Avith the registration, you coidd 
tell for Avhom the man Amted. Xoav, in this case from HaAvaii, in 
the Fifty-ninth Congress, decided by Elections No. 3, of Avhicli 
Michael E. Driscoll, of Ncav York, Avas chairman, and of Avhich 
Claude Kitchin Avas one of the members, Kandell, Kitchin, and (xill 
were the Democratic members, and I think it Avas unanimously 
voted—no; it Avas not. There Avere tAvo or three Avho did not Amte. 
The entire committee recommended resolutions in favor of the con- 
testee, but Messrs. Humphrey, Van Winkle, and Fulkerson did not 
agree that any of the ballots cast should be rejected, and Mr. Randell 
concurred only in the resolution. The report Avas concurred in and 
the resolutions adopted Avithout debate. 

In the committee report it Saxe'S [reading] : 

There is no law ^joveriiing the preparation of ballots to he voted for Ter¬ 
ritorial delegates. The contestant was declared to have received 2,868 votes; 
and the other candidate, Notley, 2,289, and the contestee, 6,838. 

There is no law of either Congress or the Territorial legislature prescribing 
the form of the ballots to he used in electing Territorial Delegates. Both i)arties 
to the contest have assumed'that the Delegate should he elected according to 
the election laws of the Territory as fai* as they applied. Under the Hawaiian 
election law it was the duty of the secretary of state to have all the ballots 
printed and sent to the se\’eral voting precincts, to provide ballot boxes, and 
generally to provide the ways and means of holding elections. The secretary 
of state and election officers of Hawaii, having attempted to follow the election 
law in theii- choice of Delegate, with the apparent consent of the several candi¬ 
dates for that oilice, are hound by that law. 

They should not he ])ermitted to invoke it for one puri)ose and reject it for 
anothm-. So far as it goes, it is detinite and clear. It declares that the ballot 
shall hear no word, motto, device, sign, or symbol other than allowed therein, 
and shall he so printed that the type shall not show a trace on the hack, and if 
a ballot contains a mark or symbol contrary to the provisions therein set forth 
it must he rejected, and otherwise carefully guards ami protects the secrecy of 
the ballot. It has no provision for numbering the ballots, or implied authority, 
.so far as your committee can discover. 


126 WTCKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Of course our election law has. [Reading:] 

However, in the year 1908, the ballots prepared for the county election did 
contain niiinhers. Those were on the sides of and separated from the main 
parts of the ballots by i)erforated lines. This was done to avoid substitutions 
and perhaps other possibilities of fraud or irrej?ularity. and, according? to the 
evidence, they proved satisfactory and tended toward honest elections. 

Just as ours have. The numbering and the perforated lines were 
just the same as the law required to be in Alaska. | Reading] : 

In the pi'eparation of the ballots for the election of 1904 the secretaiw of state 
ador)red the same i4an, so far as the numberinji was concerned, (dear across 
the top of each ballot and separating it from its stub was a distinctly perfo¬ 
rated line, and a number on siudi stub coi’responded with the number on the 
upper right-hand corner of the ballot, separated from the balance of it by less 
distinctly perforated lines. 

Just as our law provides for. [Reading:] 

It was the intention that the ballots shoidd be torn off from the stub on 
such large i)erforated line: but this, by mistake of the election officers, was 
not done in all instances. 

Xow, without going through the whole matter, the committee held 
that those ballots are void. 

Mr. O'Connor. Was anv substantial injury done to either one of 
the contestants? 

Mr. WiCKERSHAM. It was a violation of the law; that^Avas all; only 
a violation of the statutes. 

Mr. Hudspeth. There Avas a i)erforated line Avhere you tear the 
ballot, just like you tear a check from the stub? 

Mr. WiCKERSHAM. Yes. 

Mr. Hudspeth. Xoav, on the stub is a number? 

Mr. W TCKERSHAM. YeS. 

]Mr. Hudspeth. That corresponds Avith the number on the ballot? 

i\lr. AVickersham. Xo. There are tAvo numbers on the to]A and tAvo 
perforated squares, and those numbers correspond. Say it is Xo. 9 
on the left-hand corner. 

Air. Hudspeth. Of the stub? 

Air. AATckersham. A'es. Xoav, they tear that off and keep it and 
give the ballot then to the voter, and he goes out and Amtes, and Avben 
he comes back they discover that Avhen he turns his ballot in he has 
Xo. 9, so that he can not change his ballot. 

Mr. Hudspeth. Hoav do you identify the ballot? Tt has Xo. 9 
on it? 

Air. AA^tckersham. A'es. 

Air. Hudspioth. It is the same system that Ave have in Texas, except 
that Avhen you vote there your name is Avritten on the poll list and 
your number placed opposite your name. Then that same name is 
Avritted across the back of your ballot. 

Air. AA^ickersham. That is not done here. Both of these places 
are torn off under the Territorial act, and then when the ballot is 
put in the box there is no number on it. 

Air. Chindbeom. The corner is torn off when you get the ballot ? 

Air. AAickersham. Yes. 

Mr. Chindblom. The other piece with the number on is torn off 
when you return the ballot ? 

Mr. AYickersham. Yes. 

Mr. Hudspeth. AVRo keeps these two? 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 127 

Mr. WiCKERSHAM. They are destroyeci. 

Mr. Chindblom. That is for the purpose of preventing the election 
commissioners from accepting a ballot which had previously been 
given to him ? 

Mr. Hudspeth. I see your object. 

Mr. Chindblom. You are fortunate if you do not know of that 
system. 

Mr. Hudspeth. I did not know of it; but, as I stated, you could 
always go to the ballot box and to the poll list in a contested election 
and tell just how a man voted and whom he voted for. 

Mr. Chindblom. You are fortunate in not knowing of that system, 
as some of us have learned of it. 

Mr. O’Connor. How can you tell how I voted if the two numbers 
are destroyed ? 

Mr. WiCKERSHAM. You can not. But the point in this case is that 
the numbers were not destroyed in these ballots; and all you had to 
do was to run down the numbers, compare the poll list with the regis¬ 
ter list, take those ballots and run down, and tell how a man voted. 

Mr. Elliott. It is the duty of the election officers to tear those 
numbers off and put them in the box ? 

Mr. WiCKERSHAM. Yes. 

Mr. Elliott. The voter has nothing to do with that ? 

Mr. WiCKERSHAM. No. 

Mr. Elliott. And if they threw out any ballots on account of it 
we would be disfranchising the man on account of something he 
had no power over whatever? 

Mr. WiCKERSHAM. There is no question but what that is right. 
What are you going to do with your Australian ballot system then ? 

The Chairman. You are charging that this did not apply? 

Mr. WiCKERSHAM. I Said that to begin with. 

The Chairman. Are you not asking us to enforce a statute of the 
Territory that you have claimed all the while- 

Mr. WiCKERSHA^r. Was invalid. 

The Chairman. Was invalid? 

Mr. WiCKERSHAM. Yes. There is no question about that. But I 
said to you when I began—because I did not know what position you 
were going to take in the matter, you might take either position, 
might surprise me by saying that the Territorial act was valid. Mr. 
Grigsby claims that it is because it relates to these matters. I think 
he is wrong. We disagree. I am merely presenting the matter to 
you very briefly. . 

Mr. O’Connor. Do you think that this committee has a right to 
declare that act void ? 

Mr. WiCKERSHAM. They did that in your other case. They did 
that thing in that case. 

Mr. O’Connor. I am only asking the question to get your legal 
opinion. 

Mr. WiCKERSHAM. Mr. Grigsby talies the other view of it. He 
thinks that the Australian ballot" system so far as the official ballot 
is concerned is valid, and says so in his opinion; thinks those pre¬ 
cinct votes ought to be counted, because it is a fraud perpetrated 
by those officials; I do not think so. 

Mr. Hays. Your position is, primarily, that the law is void? 

Mr. WiCKERSHAM. Yes. 


128 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Mr. Hays. And if it is void, then it makes no ditference Avliether 
these are tallied or not? 

Mr. WiCKERSHAM. Noiie whatever. 

Mr. Hays. On the other hand, if the law is to be declared validj 
then you want it construed literally? 

Mr. WiCKERSHAM. Yes; that is all. Mr. Grigsby’s opinion in the 
record is that it is valid, and if it is valid those votes, those precincts, 
have all got to go out under your Hawaiian case, because this is a 
much stronger case, because in the Hawaiian case the statute did not 
require it to be done as strongly as it has to be done in Alaska. 

Now, so much for that. Now, we have a fresh breeze, fraud, and 
bribery at Copper Center precinct. 

Mr. Elliott. Is that worse than Charcoal Point ? 

Mr. WiCKERSHAM. Yes. Copper Center is a precinct on the trail 
from Fairbanks out to the coast. In the spring of 1918 the United 
States marshal from Fairbanks, coming out over the trail, stopped 
for a time at Copper Center, as the evidence shows, and being a very 
ardent partisan he undertook to do something with the vote at 
Copper Center, and he found this, that the owner of the Copper 
Center properties—and this man owned substantially all of Copper 
Center real estate—had sold his hotel and leased the room where the 
post office was to a man by the name of Ditman, and he engaged to 
get Ditman appointed postmaster at that time, and was proposing 
himself to go out of the country temporarily, and he made an ar¬ 
rangement to ha\ e Ditman appointed postmaster. 

The United States marshal came along and saw that situation and 
saw a good chance to do a little stroke of business, so he held that out, 
as the evidence shows, and said so to them; the agreement was finally, 
that if they would turn the vote of Copper Center over to—I am get¬ 
ting a little ahead of my story. There was a second man who wanted 
to be appointed postmaster. This second man resided out of town 
about a mile. He wanted to be appointed postmaster and take the 
post office out of Copper Center to his farm about a mile away from 
the town, and the Democratic national committee man had indorsed 
the other man, McCreary, out along the trail, the Kepublican owner 
of the property, and it was then that the postmaster became very much 
exercised because it was going to be a great injury to him personally, 
and take business out of the town, if that Avas done. So he finally, 
that night, entered into an arrangement with the United States 
marshal that if they Avould all turn in and support Mr. Sulzer in the 
prirnary election, Avhich was then just to be held in a few days, that 
he, the marshal, Avho Avas then coming to Washington City, would 
liaA^e this man, Ditman, appointed postmaster in consideration of se¬ 
curing these votes for Mr. Sulzer at the primary and the fall election. 

The marshal came on out to Cordova and there he saw Mr. Dono¬ 
hue, the Democratic national committeeman, and he sent this tele¬ 
gram back to Blix, the Kepublican oAvner of the buildings and post 
office there. | Heading:] 

CoRDOA^A, April 22, 1918. 

R. Blix, Copper Center: 

Saw Donohue; says Sulzer has never gotten any support to speak of at your 
place, but promised to make the change, provided you Avill get good vote for 
Sulzer at primary. IVIorrisey is going down on same boat Avith me. If you make 
good showing, change will be made. 


L. T. Eravin. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 129 


Krwin is the United States marshal. After he saw Donohue he 
telegraphed this back on April 22 to the proprietor. Well, of course, 
the proprietor was all right. That was what he wanted exactly. 

He then came on to Washington and I will just read a little testi¬ 
mony, page 693, of the record. [Reading:] 

Q. 1 witlidraw that for a moment and will offer the witness a telegram dated 
May 2, 1918, addressed to Chas. A. Sulzer, House of Representatives, Wash¬ 
ington, D. C., and is signed by R. Blix, postmaster, and I wish you would 
state if you sent that telegram to Mr. Sulzer at the date it bears.—A. Yes, sir. 

Q. That was after the primary election had been held?—A. Yes, sir. 

Q. What was the date of the primary election?—A. I don’t know, sir; I can’t 
quite recollect; it was April 30, I think. 

(}. 'l'’wo days before the telegram was sent?—A. About two or three days; 
shortly before anyway. 

And then I offered the next telegram in evidence, which reads 
like this [reading] : 

May 2, 1918. 

CHAELKS A. SULZEK, 

Care of House of Representatives, Washington, I). C.: 

Primaries here gave you 17, Malony none, Wickersham 1. The consideration 
as promised by Donohue and Erwin, on April 22, McCrary’s name to be with¬ 
drawn as postmaster here and that of Dittman recommended and that post 
ollice be kept where it is at i)resent. On April 20 petition was circulated, 
signeil by all patrons of post ofiice, protesting against McCrary as postmaster 
and moving of ofiice to his farm half mile north of here. 

Petitions, plats, other papers was mailed to Erwin, care Department Justice. 
Upon his and Morrissy’s arrival there they will fully explain matters. On 
receipt of tins please call on First Assistant Postmaster General to defer 
issiung commission to McCrary till Erwin’s arrival. As soon as matters has 
been settled in accordance to petition and wishes of the patrons of the post 
ofiice here wire me fully the results. 

R. Blix, Postmaster. 

Now, mind you, this was a Republican postmaster making all these 
arrangements, and he sent this telegram to Mr. Sulzer stating the 
agreement and the consideration. 

Mr. Hudspeth. In that election you were not a candidate? 

Mr. WiCKERSiiA3r. I was on the Republican ticket. But you'will 
discover a little later that the consideration extended to the fall 
election as well. [Reading:] 

Q. Did vou receive anj^ telegram from IMarshal Erwin later than that?—A. 
1 did. 

Q. I show you a telegram dated Washington, D. C., May 14, 1918, signed 
“ Ti. T. Erwin,” and ask you if you receivetl tliat telegram?—xV. I did. 

:(! * * * * * 

(}. Now, this telegram from Washingt<m, D. C.. dated May 13. signed by Ti. T. 
Erwin, was received subsequent to your seiiding this other one to Mr. Sulzer?— 
A. Yes, sir. 

Q. And you received that telegram?—A. Judge Erwin sent me this in reply 
to the one I sent. I expected a reply to mine from Mr. Sulzer, but Mr. Erwin 
wired for him as well as for himself. 

Ihe next telegram is from page 708 of the record [reading] : 

Washington, D. C., May iS-l.’i, 1018. 

R. Blix, Copper Center: 

Delegate Sulzer has arranged everything to the satisfaction of the patrons 
of post office.* Dittman appointed as i-equested in petition. I^et me beg you to 
show Sulzer your appreciation by doing as well foi' him in November as you did 
in April. Sav nothing until Dittman gets his commission. 

L. T. Ekwtn. 


181744—20 


9 



130 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Now, the author of that went on and testified very fully that this 
consideration was to cover the fall election as well as the spring 
election, and that it did cover the fall election, and that all of those 
people felt that they had to deliver the goods because they were 
under the control of the Democratic national committeeman and 
the United States marshal who was here in Washington with Mi’. 
Sulzer; and by virtue of this agreement they did deliver all the votes 
there against me where I had had a big majority before in proportion 
to the population. At the fall election Connolly received no votes at 
all, Sulzer received 10, and 1 received none. Sulzer got every vote. 
Theretofore I had received a large number of votes. 

Now, my theory about that matter is that the marshal came there 
nnd simply held them up, according to the testimony in this case, 
and insisted that if they did not deliver the votes in that case he and 
all the Democratic committeemen would move this post office out on 
^IcCrary’s farm, and being coerced and intimidated by that method, 
they did agree with that proposition and it was carried out, and the 
men did deliver the goods: they gave this Republican postmaster what 
he had bargained for, and he got the post office upon that basis and I 
lost all the votes in the town although T had heretofore carried a 
very large majority. I do not knoAv, of course, what you think of 
selling post offices to Republicans for votes, even for Mr. Sulzer, but 
there is no question about the evidence in this case. It was a delib¬ 
erate holdup, a deliberate coercion, a deliberate intimidation of those 
people, and they had to do it for they were in the power of these two 
men. It was fraudulent, and if it was not bribery, it was the next 
thing to it. I think it was bribery. 

Now, I have a decision here from iSIcCrary. I am not going to 
read these decisions. Of course, the universal rule is that where the 
result of an election is obtained by bribery it is null and void; and if 
you pay them money to come in and vote, their votes go out because 
they are fraudulent, and if you pay in anything else it does not make 
any ilifference. It does not have to be money. If you hold them up 
and pay them with a Democratic office if they are Republicans, as 
these men were, it is bribery just the same. 

McCrary on election, page 217, which we have right here says 
[reading] : 

Sec. 217. Tlie (loctrire of (he cases last cited, that a candidate for a public 
office can not lawfully attempt to irdluence votes by an offer of puldic benefits 
and advantages to be jtrauted in the event of his election, is no lon^ter open to 
question. Such a transaction amounts to a sale of the oflice to a candidate mak¬ 
ing the most favorable offer to the public. Such a practice, receivin.it judicial 
sanction, would undoubtedly tend, as was said by the Supreme Gourt of New 
Hampshire in Tucker r. Aiken, “ to divert the attention of the electors from 
the qualifications of candidates to the terms on which they will consent to 
serve and make the choice turn upon considerations which ouiht not to have an 
influence.” 

Now, that is the authority, and it is perfectly clear from the evi¬ 
dence that the facts within this case come squarely within that au¬ 
thority, only it is a little bit stronger. 

Mr. Chtndblom. This authority—I am quite familiar with that 
line of cases—this authority relates to a case where a candidate for 
office promises, for instance, to turn his salary back to the county or 
the municipality or that he will take less compensation than the 
salary or that he will not accept some of the emoluments of the office. 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 131 


Mr. WiCKERSHA^vi. There is no doubt about that; it is the same 
princi})le, but this is a little bit worse. Here is a telegram from the 
marshal selling the office deliberately to a Kepublican for a few 
votes, and be delivered the ^'oods, I must sa}^ that for him. 

IVIr. CHiNDm.ow. They both delivered. 

i\Ir. IViCHERSHAM. They both delivered. I lost where I bad always 
bad a bi^ majority in proportion to the population. That was the 
smallest vote ever cast there. 

I want to talk to you now about illegal votes from Indian reserva¬ 
tions. We have in southeastern Alaska two Indian reservations 
created by Executive order of the President of the United States; we 
have another Indian reservation where the Indians have lived from 
time immemorial, and their lands have been set apart to them; they 
live in the community as they always did live under their old tribal 
relations without any chancre from the first settlement of the country. 
They live in Juneau in the Indian village just as they always lived. 
Of course, the Indians are gradually assuming the habits of civil¬ 
ized life by wearing clothes. They can not get so much liquor, but 
they still live in the villages on lands reserved b}^ statutes of the 
United States, especially in this one. In the other two places they live 
on places established by Executive orders of the President. I have 
offered these Executive orders in evidence, and the}^ are before this 
committee. 

I ofler the first one for tlie creation of the Hydah Indian reserva¬ 
tion. It is Excutive order dated dune 19, 191‘2, at the White House 
and is signed by William H. Taft, and it reads [reading] : 

It is liereby ordered that the followiiif; land and water surfaces within the 
Ton.sass National Forest, surroundiiifi- the villa^>e of Hydahiir^- in Alaska, he, 
and the same are herel)y. reserved, subject to any vested riithts, for use of the 
Hydah Tribe of Indians and such of the natives of Alaska as may settle within 
tlfe limits of the res(‘rvation, viz: 

Bejfinnins at a lar^e rock situated at the line of hiifh tide and a few feet north 
of the sawinill in the village Hydahurg on the west coast of I’rince of Wales 
Island, at approximately 55 degrees 12 minutes north latitude and 132 degrees 
48 minutes west longitude, and at a cross chiseled on said rock, and running 
thence east 141) chains to a point for the mi<ldle of the east boundary of the 
reservation; thence north 140 chains to a i)oint for the northeast corner; thence 
west 279.00 chains on land and the water of Sukkwan Strait to a point for the 
northwest corner; thence south 280 chains on said strait and on land to a point 
for the southwest cornel-; thence east 280 chains on said strait jind on land to a 
point for the southeast corner ; thence north on the east boundary 140 chains to a 
T)oint east of the place of beginning, including a tract 12.24 square miles (7,833.0 
acres) with all islands and parts of islands within said bouidary, as re])resented 
upon a diagram accompanying this order and made a part hereof. 

W:u. H. Taft. 

The White House, June JO, J0J2. 

Then follows the descrii)tion of the outer boundaries of the reser¬ 
vation. To that is attached a map of the reservation designated 

Reservation for the use of the Hydah Tribe of Indians and other 
natives of Alaska as may settle thereon. Total area 12.24 square 
miles, or T,T3().() acres. Department of the Interior, Bureau of Edu¬ 
cation, P. P. Claxton, commissioner.” 

And on that is a map of the Prince of Wales and Sukkwan Island, 
and the reservation is marked out, and the town of Hydaburg is 
down there about the center of the reservation, and the Hydah Tribe 
of Indians live on that reservation, and on election day they went 


132 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


over here to this place marked Siilzer and voted. Every one of them 
voted for Mr. Sulzer. 

Mr. CiiiNDBLOM. How far away is Sulzer from Hydaburg? 

Mr. WiCKERsiiAM. Twenty-three or twenty-five miles away, the 
way you have to go. 

The Chairman. It is in the precinct, however? 

Mr. IViCKERSHAvr. It is in the precinct. 

The Chairman. Now, the town jmu refer to—I believe you said 
Hydaburg- 

Mr. IViCKERsiiAM. Hydaburg, that is the village. 

The Chairman. Is that a part of this reservation, and is that 
owned by the Indians personally ? 

Mr. WiCKERSHAM. No; it is owned by the Government. 

The Chairman. Do the Indians there erect their own houses? 

Mr. IViCKERSHAM. Yes. 

The Chairman. They build their own houses? 

Mr. WiCKERSHAM. Yes; the Government does not build them. 

The Chairman. The Government has furnished nothing except 
the land? 

Mr. WiCKERSHAM. The Government has furnished the land, 
schools, and the school teachers and everybody who looks after it. 

The Chairman. But they have done nothing toward the improve¬ 
ment of the reservation Avith reference to erecting buildings? 

Mr. WiCKERSHAM. The Government has public buildings and also 
schools. xVll that is in evidence. 

The Chairman. One other thing. Are these houses built by the 
tribal Indians or by the individual who owns the houses? 

^Ir. WiCKERSHAM. I suppose by the Indians. I haA^e no doubt 
that is true. 

Mr. CiiTNDBLOM. The houses in Avhich the Indians live? 

The Chairman. Yes. 

Mr. WiCKERSHAiM. I supposc by the Indians themselves. 

Noav, the next one is the KlaAvak Indian Reservation, created by 
Executive order of Woodrow Wilson from the White House the 21st 
of April, 1914. 

The Chairman. May I ask a question there ? 

Mr. WiCKERSHAM. Yes. 

The Chairman. Is that a correct copy of the original and that is 
introduced in evidence ? 

Mr. WiCKERSHAM. Yes. They are in the brief. 

Mr. Hudspeth. Is your contention that they Avere not voters ? 

Mr. WiCKERSHAM. Absolutely reserA^ation tribal Indians. 

Mr. Hudspeth. HaAung no status as voters under the laAvs of the 
Alaska Territory? 

Mr. WiCKERSHAM. None whatever; nor anyAvhere else. The tribal 
Indian does not have the status anyAvhere so long as he remains with 
the tribe on the reservation. 

Mr. Elliott. What method Avould an Indian haA^e to go through 
in order to become a resident of the United States. 

Mr. WiCKERSHAM. He Avould liaA^e to separate from the tribe and 
assume the habits of civilized life and live separate and apart from 
any tribe of Indians. 

iVIr. Elliott. Would he haA^e to be naturalized ? 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 133 


Mr. WicKERSHAM. That does naturalize him. 

Let me call your attention to the Indian naturalization law of 
1887, which naturalizes the Indians very easily, and very many have 
been naturalized under that law. 

The Chairman. Your position is this, that as long as an Indian 
lives upon a reservation in a house or hut that he has built he is still 
retaining the tribal relation and can not vote ? 

Mr. ATickersham. Yes, sir; without any other qualification but 
that. lie may be wealthy, he may be as wealthy as elohn D. Eocke- 
feller, and he may be as brilliant a man as AA^oodrow AVilson, but so 
long as he remains there a part of the tribe and lives on the tribal 
reservation as a member of the tribe, under the statutes he can not 
vote. 

The Chairman. One other question. Living upon the reservation 
within the house that he has erected, can he separate himself from the 
tribe under these circumstances? 

Mr. AA^ickersham. Not without he leaves the reservation; no; be¬ 
cause the land—on the reservation this is a small tract, usually only 
12 acres, and it is not a large tract to be allotted, or anything of that 
kind. It is a small tract to bring these people together and hold them 
there for the control of the Bureau of Education, whose office is in 
charge. 

Mr. Chindhlom. Is there a tribe on this reservation ? 

Mr. AYickersham. Yes; there is. 

Mr. Chindblom. A tribe of Indians with a chief and a tribal form 
of government? 

Mr. AVickersham. Oh, no; not in that sense. They wear clothes 
like you and I do, and all that. They moved up there, two of the 
villages, just a little west of this place, moved up from those vil¬ 
lages up to this one, about two years before this reservation was 
created and had the reservation created so as to protect them from 
the encroachments of the whites. 

Mr. Hudspeth. The Government did that? 

Mr. AYickersham. No; they did it themselves. They are all fisher¬ 
men. 

Mr. Hudspeth. Does the Government feed them ? 

Mr. AYickersham. No; they feed themselves. 

The Chairman. Y^ou draw the line absolutely upon the place of 
his habitation? 

Mr. AATckersham. Not at all. I dniw the line upon the facts 
which show that he is a member of a tribe. 

The Chairman. Yes; as you answered my question a moment ago, 
if he remains on the reservation. 

Mr. AYickersham. Yes. 

The Chairman. That fact alone, as I understand you, makes him 
ineligible to vote? 

Mr. AATckersham. As long as he remains there as a member ot 

the tribe; yes. ^ ^ -i ^59 

The Chairman. AA hat do you mean “ a member ot the tribe ? 
That is the question I asked you a while ag^o, while remaining on the 
reservation, what is his tribal relation? • , . n 

Ylr. AYickersham. As long as he remains there with the tellow 
members of the allied band, continues to live on this little reserva¬ 
tion right in the little huddle of a little town; when they hold them- 


134 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


selves out as a tribe, and are recognized l)y the President of the 
United States and all the officers of the United States as a tribe, 
then under the statutes they can not become citizens of the United 
States. To do that they must leave that form of life, they must 
leave their tribal relations and go separate and apart on lands and 
otherwise assume the habits of civilized life. 

Mr. Chtxi)bix):\i. I call your attention to the language of the Ex¬ 
ecutive order of Pt’esident Taft, namely, that the lands described are 
reserved, “subject to any '\^sted rights, for use of the Hydah Tribe 
of Indians and such other natives of Alaska as may settle within the 
limits of the resein^ation.’’ 

^Jr. WTf’KEHsiiA:\r. ^'es, sir. 

Mr. UHiNDunon. That draws no distinction between the Hydah 
Tribe of Indians and other natives of Alaska that may settle there. 

Mr. AVTrKEirsiiA:vi. If a KlaAvak should come and live with them, 
he can come and live Avith them, and lie assumes the same relationship 
they do if he does that. 

The (^HATRALAN. But does not this Executive order noAv, from its 
language, permit others than the Hydahs to settle on this reserva¬ 
tion ? 

Mr. IViCKEiiSHAAi. Yes; as long as they are Indians. 

The Uhairaian. And they may not necessarily be members of this 
tribe ? 

Mr. AVickersiiaai. They may not necessarily be members of this 
tribe, but if they settle there as Indians and assume the same tribal 
relations as those they assume the same legal status as those, or they 
continue in that same legal status. 

]Mr. CiiiNDRLOAi. One further question: Does the record shoAv that 
these Indians, Avho may not have been members of the Hydah Tribe, 
eA'er lived Avith the tribe? 

Mr. WiCKERsiiAM. There is no shoAving in the record that they 
are not all Hydahs. The shoAving is that they are all Hydahs in this 
jilace, and in the other ])lace all IvhiAvaks except one. One Avas a 
Hydah avIio AA’ent oA^r there. They are all KlaAvaks on the Khnvak 
Reservation and all Hydahs on the Hydah Reservation. 

Mr. Chindrloai. The record shoAvs that? 

Mr. WiCKERSHAAr. Yes; A^ery clearly. 

In the other order, dated April 22, 1914, signed by President Wil¬ 
son, it is said, [reading] : 

KXECT’TIVE ORDER No. I!>20. 

It is hereby ordeivd that tlie tract of huid in Alaska, described as folloAA^s, in 
and surronndin.i; the nativo village <>f IvlaAvak, and within the Ton^ass Na¬ 
tional P\)rest, he, and the same is hereby, reserved, siih.iect to any vested rights 
existing, for the use of tlie United States Ihirean of Education and of the 
natiAX‘s of indigenous Alaskairrace avIio may thei-e reside, viz: 

nc.scriptioti .—Keginning at a point on the shore of the salt hay or mouth of 
KlaAvak Stream, 114 links south of a post marked U, S. I. U. 1, which is a 
Avitness said point on shore and stands about .30 chains eastAvard from KhiAvak 
Adllage; thence northerly by a marked line 58.49 chains to a point on the 
shore of Khuvak Harbor, which is ;i() links north of a witness post marked 
U. S. I. R. 2; thence AA’esterly along the shore, and then around the peninsula 
at the mean high-tide mark to point for corner No. 1, the i)lace of beginning; 
situated approximately in latitude 55 degrees 83 minutes north, longitude 138 
degrees 0(5 minutes west, and estimated to contain 230 acres; as represented 
upon a dia.gram accompanying this order and made a part thereof. 

WOODROAV WiESON. 

The White House, April 2J, JDIJ/. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 135 


Xow, you will notice that this is ‘‘the native village of Klawak.” 

The Chairman. (Getting back to this other order—I Avant to get 
this clear in mv mind—in this order I note this language: 

And the sjiine are lierehy resei ved, siil).ject to any vested I'i^iits for use of the 
Ilydali Tribe of Indians, and sncli of the natives of Alaska as may settle within 
the limits of the reservation. 

Assuming that anotlier native settles within this reservation avIio 
is not a member of this tribe, and is not a member of any other tribe, 
<lo you then claim that that fact that he resides on the reservation 
deprives him of the right to A^ote? 

Mr. WiCKERsHAM. That is purely an academic (jiiestion because 
there is no eAudence in the record to shoAv that any other Indian 
rloes live there excei)t Hydahs. The evidence shoAvs that they are 
all Hydah Indians, and shows Avhere they came from to this place. 
There is no question of that kind in the record. There is no question 
of that kind in relation to anyone except one man at the other i)lace. 
One man is shoAvn to have left the Hydah IteserA^ation and married 
an Indian Avonian and settled on the KlaAvak Reservation. 

The Chairman. As T recall the eAudence there are, I think, two 
Avhite men at Khnvak. 

Mr. MTckersiia]vi. No; there Avere Avhite men at KhiAvak Avho 
lived on the land before it Avas a reservation. 

The Chairman. I may be mistaken. 

Mr. IVtckersham. There are some men there, the minister at each 
one of these ])laces, and the school-teacher, and probably other 
(diicials. 

Idle Chairman. AAdiat I Avas calling attention to Avas the man Avho 
married Indians. 

Mr. AVickersham. Indian Avomen? 

The Chahoian. Yes. 

Mr. AATckersham. They lived there before this Avas created an 
Indian reserAuition, but it Avas an old tribal village. They moATcl 
from the village of HoAvkan to Hydaburg so as to get aAvay from 
the Avhite people and get a goATrnment of their OAvn. It Avas testi¬ 
fied to by the officials then in charge that they Avanted to get them 
aAvay from the Avhite men, to get Avhere they could be under control 
on a* small reservation, and Avhere they could control them and send 
them to school and make them citizens. They are doing Avell Avith 
them. I am not raising any opposition to that. 

Noav, the ExecutiAT order of April 21 reads [reading] : 

It is hereby ordered that the tract of land in Alaska, described as folloAVS. in 
and surrounding the native Aillage of Klawak, and Avithin the Tongass National 
Foi-est, he, and the same is hereby, reserved, subject to any vested riglits exist¬ 
ing, for the use of the United States Bureau of Education and of the natives 
of indigenous Alaskan race Avho may there reside, viz. 

And then folloAvs, on the next page, a map and part of the order 
[reading] : 

KhiAvak Reservation for the use of KhiAvak Indians, Alaska, embracing a tract 
of land in the Tongass National Forest approximately in latitude 55 degrees 33 
minutes north, longitude 133 degrees 06 minutes Avest, as shoAvn by shaded lines 
and designated “ KhiAvak Reservation ”; estimated area, 230 acres. Depart¬ 
ment of the Interior, Bureau of Education. P. P. Claxton, Commissioner. 

This is a much larger reservation than the others. 


136 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Now, that shows the conditions surrounding those two places. 
There are two reservations made by the President of the United 
States by Executive order. He has the authority to do that, always 
has had. It is one of the usual methods of making reservations, and 
the reservations in Alaska have been created just that way. All of 
the military reservations, all of the reservations of every kind in 
Alaska, except the Annete Island Reservation, have been created 
in that way, except where, like the Auk village, the lands have been 
reserved by an act of Congress. There is no question about these 
being reservations and about these being Indian members, and the 
only question is. Have they the right to vote ? 

I Avant to call attention to the statutes in respect to these people. 
In the first place, an Indian can not make himself a citizen of the 
United States. He must be naturalized. That case Avas very fully 
discussed in Elk v. Wilkins (102 IT. S., 94). The Supreme Court 
in that case said [reading] : 

The alien and dependent condition of the meinhers of the Indian tril)es could 
not he imt off at their will Avithoiit the action or assent of the United States. 
They Avere never deemed citizens of the United States, except under explicit 
provisions of treaty or statute to that effect, either declaring a certain tribe, 
or such minhers of it as chose to remain behind on the removal of the tride 
westward, to he citizens, <n- authorizing the individuals of particular tribes to 
become— 

In other Avords, the court there holds that an Indian Avas not able 
to make himself a citizen of the United States by anything he 
could do. 

The Chatraian. But since a statute- 

Mr. WiCKEiisiiAAi. I Avill call attention to that in a moment. At 
that time Elk Avas an educated man. He resided in Omaha, Nebr., 
and had asumed the habits of civilized life. He could read and 
write and do everything that you and I could do—probably not 
as aatII— eATrything that a civilized man can do. He tried to vote and 
they Avon Id not let him. Then he brought this suit and the court de¬ 
cided that he had no right to vote and that he must be naturalized 
just the same as if he Avas a citizen of Germany. He occupied exactly 
the position of an Italian AAdio comes to this country and has no right 
to Amte until he is made a naturalized citizen of the United States by 
laAv, and the same rule has to be folloAATd Avith an Indian as with a 
German or Englishman or anybody else. He may be a Avealthy man 
or a learned man, but he has got to go through just the same method 
of acquiring that citizenship as any person^ as is. prescribed by the 
Statute. 

The court further said in that case [reading] : 

P.nt an Indian can not make himself a citizen of the United States without the 
consent and cooperation of the Government. The fact that he has abandoned his 
nomadic life or tribal relations, and adopted the habits and manners of civilized 
people, may he a good reason why he should he made a citizen of the United 
States, hnt does not of itself make him one. To he a citizen of the United States 
is a political privilege, which no one, not born to, can assume without its consent 
in some form. 

And in the syllabi the court says [reading] : 

An Indian, born a member of one of the tribes within the United States, which 
still exists and is recognized as a tribe by the Government of the United States, 
Avho has voluntarily separated liirnself from his tribe, and taken up his residence 
among the white citizens of a State, but who has not been naturalized, taxed or 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 137 


reco. 2 :nized as a citizen, either by the United States or a State, is not a citizen 
of the United States, within the meaning of the first section of the fourteenth 
article of amendment of the Constitution, 

And they turned him down. 

Now, that set Congress to thinking, Mr. Chairman, and Congress 
then passed a law providing for the naturalization of Indians in a 
general way, and I now Avant to call your attention to the act of Con¬ 
gress of February, 1887, 24 Statutes at Large, at page 390. I have 
referred to it in my brief. I have copied in verbatim from the natu¬ 
ralization law of the act of 1887, and it reads like this [reading] : 

Sec. 6. That upon the completion of said allotments and the patenting of the 
lands to the allottees, each and every member of the respective hands or tribes 
of Indians to whom allotments have been made, shall have the benefits of and 
be subject to the laws, both civil and criminal, of the State or Territory in which 
they may reside; and no Territory shall i^ass or enforce any law denying any 
such Indian within its jurisdiction the equal protection of the law. And every 
Indian horn within the territorial limits of the United States to whom allotments 
shall have been made under the provisions of this act, or under any law or treaty, 
and every Indian horn within the territorial limits of the United States who 
has voluntarily taken up, within said limits, his residence separate and apart 
from any tribe of Indians therein, and has adopted the habits of civilized life, 
is hereby declared to be a citizen of the United States, and is entitled to all the 
rights, ju-ivileges, and immunities of such citizens, whether said Indian has been 
or not, by birth or otherwise, a member of any tribe of Indians within the terri¬ 
torial limits of the United States without in any manner impairing or otherwise 
affecting the right of any such Indians to tribal or other property. 

So that thei'c are tAvo Avays by Avhich an Indian can become a 
citizen of the Ignited States; If he is a tribal Indian living on a 
reservation, and that reservation is allotted to the Indians, and he 
is giA^en an allotment on the reservation, that of itself makes him a 
citizen of the lAiited States Avithout regard to Avhether he is other- 
Avise capable or not. Just the mere fact that the (fovernment has 
issued him the title makes him a citizen of the United States, and 
he can vote. 

^Ir. (xRiGSBY. Is there not a proviso in that section that you did 
not read ? 

■ ^Ir. IVtcker8iia:\[. I think not. What does it relate to, do you 
knoAv ? 

Mr. (trtCxSbv. That he Avill not give up any of his proiierty. 

Mr. CTtini)BL():m. That is at the end. 

Mr. Wtckersiiaai. Yes. If he is allotted these lands, that makes 
him a citizen: and if not, then the only other Avay that he can become 
a citizen is the method jiointed out here, that he has voluntarily 
taken up Avithin such limits his residence, separate and apart from 
any tribe of Indians therein, and has adopted the habits of civilized 
life. That Avill make him a citizen, but he must take up, separate 
and apart from any tribe of Indians therein, his residence, and adopt 
the habits of civilied life. 

Noav, he can not do that so long as he continues to live on a reserva¬ 
tion as the member of a tribe. That is the point I Avant to make. 

^Ir. Hays. You contend that these men have never acquired the 
right of franchise, first, because they still maintain the tribal rela- 
tionshi]:> of the reservation ? 

Mr. WicKERSHAM. Yes. 

Mr. Hays. Secondly, because they have never been naturalized, 
and, third, because the other method- 



138 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Vv. AVk iveusdam. Has not taken place. There has been no allot¬ 
ment of land to them. 

Mr. (\TnNi)nLoM. (Vndd there he an allotment of land to these 
Indians Avithin any territory of their 0 AAm '(' 

Mr. AAh('KEHsiiAiAr. AATll, no. 

Mr. (hnxi)BT>oM. Those Avere lands Avhich AAei’e reserved for their 
nse ^ 

Mr. AVickeijsjiaai. AAdiich Avere reserved by ExeciitiA^e order. 

Mr. Chindblom. By simply setting apart by the Government lands 
for the Indians to moAe upon, and for the department of education 
to conduct schools upon, but no land Avas giAen to the Indians^ 

Mr. AAhcKEKSHA^i. No. ' 

Mr. Ghindblom. That has generally been done by treaty, has it 
not 'i 

Mr. AATckeksham. That has generally been done by treaty under 
Indian legislation, very frequently by executiAe order, large tracts 
haA^e been set apart and allotted to Indians. You see Ave do not 
make treaties, or have not been making treaties Avith the Indians 
since 1870. So if Ave have created any reservations since 1870 it 
has been by ExecutiA^e order or by Congress. AA^e haA^e a reserA’ation 
in the Aniiete Islands that Avas created by act of Congress. That had 
to be done because they Avere not Alaskan Indians. 

Mr. Chindblom. You think the Indians of the Hydah Tribe have 
any rights in the land Avhich Avas reserved to them by the Execu- 
tiA’e order of President Taft? 

Mr. AA^ickersham. They can not hav’e any right until the patent is 
given to them. No Indian has any right to land on a reservation 
until patent has been issued. 

Mr. Chindblom. Has the tribe aii}^ right to the lands? An allot¬ 
ment is simply, dividing it among the members of the tribe, but has 
the tribe any right to the land? 

Mr. AAhcKERSHAM. Yes; I think so. He has in the land in the 
Indian Territory, Avhich Avas AvithdraAvn by act for the benefit of 
the tribes specifically. 

Mr. Hays. OAAmed by the tribes in common. 

Mr. AATckersham. The Avord “ OAvned ” is rather too indefinite. It 
is occupied b}^ them. It is a better phrase to use “ occupied by them 
in common,” and until the land is alloted to them they are not citi¬ 
zens of the Enited States, and until they leaA^e tribal relations Avhich 
they had assumed, Avhere there are ancient Aullages in the community 
existing from time immemorial, until they Avent to this place and 
continued to live in tribal relations, because many of them had se})- 
arate houses. 

Mr. IIuDSEETH. In the 191G election A^"as there in that election any 
illegal Azotes by Indians? 

Mr. AA'ickersham. Yes. 

Mr. Hudspeth. AA'hat Avas the holding of the committee? 

^Ir. AA'ickersham. The holding Avas that tAvo of these men Avere 
• shoAvn to IniA-e adopted the habits of civilized life and Judge lA^ilson 
thought there Avere entitled to vote, but he gave little attention to 
the matter, it Avas pushed aside and aaxts not substantially considered 
at all, except that he did do that. There Avas no (jiiestion that they 
Avere all that time. I assume that some of these people on both of 
the reservations are competent men. 


WICKERSHAM VS. SULZER (DECEASED). AND GRIGSBY. 139 


Mr. Hudspeth. Qucalified voters? 

Mr. M ickersha:m. They would be otherwise, but they are just 
the same as a German or i^liiijlishman Avho is not naturalized. They 
Avould be qualified voters if naturalized. It is a legal status that 
they are not in, and not because of their education or their personal 
qualifications. 

Mr. Hudspeth. Under this last act, it is not a question of naturali¬ 
zation, but it is a question of Avhether they own these lands to a 
sufficient extent in the treaty that would make them citizens. 

Mr. M rcKERSHAM. No; they must not oAvn them in common, must 
OAvn them separately. 

^Ir. Hudspi:th. In fee. 

Mr. M ICKERSHAM. Separately. They are given lands in fee sepa¬ 
rately and a patent, then they become citizens of the Ignited States. 

iVlr. Chindrloai. Now, the Alaska Indians, I presume it will be 
admitted, are situated differently, quite differently from the Indians 
down here in the Territories. The Alaska Indians have not existed 
as tribes in the way that the Indians haA^e on the plains doAvn here. 

Mr. WicKERSHAAi. Oh, yes; just the same. 

Mr. Chindbloai. I haA^e been informed otherAvise. 

Mr. WicKERSHAAi. You are mistaken if you haA^e been. The Avhole 
of the interior of Alaska is occupied by the Athabaskan Tribe of 
Indians. The Athabaskan stock occupies the Avhole of the interior 
of Alaska. Those people at an early date migrated from Oregon. 
They are the same as the Iroquois, and hav^ the same identical lan¬ 
guage, Avhile these tribes noAvadays are divided into Thlinkets, Hy- 
dahs, and Tsimpseans, and they are just as distinct as Germans, 
Frenchmen, and Englishmen. 

Mr. Chindbuoai. We had a matter up before the Committee on 
the Merchant Marine and Fisheries Avhich inA^oh^ed the procuring of 
food for the Indians on the reservations in Alaska, and the status 
of these Alaskan Indians Avas brought out. 

Mr. 'WiCKERSHAAi. Well, it has been decided by the courts up there 
that there is nothing left to be talked about. It has been decided by 
the highest court in Alaska, the ninth circuit of the United States. 

Mr. Chindbloai. I AA^ould like to haA-e some of those decisions. 

The Chairaian. Has he cited those? 

Mr. 'Wicivp:rsiiaai. Yes; all of them. 

The Chairaian. In your brief? 

Mr. WiCKERSHAAi. Yes. 

Mr. O’Connor. Hoav Avould you determine Avhether an Indian had 
adopted the habits of civilized life? 

Mr. WiCKERSHAAi. That is a matter of eAudence in each case. 

The Chairaian. Does the court in these decisions draAv a distinct 
line betAveen the Indian Avho has not adopted civilized life and the 
one Avho has? 

Mr. WiCKERSHAAi. Yes. 

Mr. Hudspeth. It is a question of fact. 

Mr. WiCKERSHAAi. It is a question of fact in each individual case. 
Each individual Indian stands alone under the facts and the law. 

The Chairaian. Under the facts and the law? 

Mr. WiCKERSHAAi. That he must separate from the tribe and haA^e 
adopted the habits of ciAulized life. 


140 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. O’Connor. Does he have to separate himself and adopt the 
habits of civilized life, or adopt the habits of civilized life ? 

The Chairman. Your position is, however, that he must adopt the 
habits of civilized life; but if he remains on the reservation he has 
not complied with the law? 

Mr. WiCKERSiiAiM. Certainly not. But if he remains on the reser¬ 
vation and the reservation is allotted, and he gets an allotment, he 
becomes a citizen whether he has adopted the habits of civilized life 
or not. 

The Chairman. But do the decisions go to that extent ? 

Mr. WiCKERSHAM. Yes. 

The CHAiR:vrAN. I wish you would give the reporter the reference. 

Mr. WicivERSHAM. I would rather call them to your attention. 
The first case I am going to call to your attention is Fair v. Frazier 
(28 Nebraska, p. 483). 

Mr. Chindblom. What tribe of Indians is involved? 

Mr. WiCKERSHAM. Winnebagoes and Omahas. 

Mr. Chindblom. Of course, they have a perfectly established status 
as Indian tribes ? 

Mr. WiCKERSHAM. Yes. 

Mr. Chindblom. They had tribal government? 

Mr. WiCKERSHAM. So liave these others. 

Now, the Government of the United States has published a large 
number of books and, of course, there is a book about that particular 
matter. You have it right in your library in there showing the divi¬ 
sion of all these Indians in the United States into tribes. You will 
find the Klawaks and the Semshans and the Hydah bands all men¬ 
tioned in there. Now, in this case of Fair v. Frazier, there was an 
election held near the Omaha Reservation in Dakota County, and 
there were some Indians from the reservation voting at the election; 
a contested-election case was raised over it and the point in the case 
turned upon the fact that these Indians from this reservation had not 
had patents issued to them, and they therefore being reservation In¬ 
dians and not having received their patent and allotment they were 
not entitled to vote, and the court held that that was correct and 
stated this doctrine that I have been stating to you. The court says: 

Tliere was a ]ai‘,i?e aiaoiint of evidence taken and rei)orted by the referee, 
chielly directed to tlie inquiry as to whether tliese Indians liad or had not 
abolished their tribal relations with each other and adopted the habits of civilized 
life. This testimony is utterly irrelevant except upon the theory that it was 
claimed by the respondent that these Indians were (dtizens and hence voters 
under the second clause of the sixth section of the act of February 8. 1887, 
popularly known as the Dawes bill, and if so, it were only necessai\v to show that 
said Indians continued to live together on an Indian reservation and that the in¬ 
dividual Indian has not “ taken up * * * separate residence se])arate and 

apart from any tribe of Indians.” As to the other Indians, it is the allotment to 
them of lands in severalty by the General Government which alone is claimed to 
make them citizens, and no amount of education, civilization, or cultivation, 
without such allotment can do so. 

There is a decision upon this point by the Supreme Court of Ne¬ 
braska, holding that if they are on the Indian reservation and the}^ 
have not received any allotment it does not make any difference 
whether they have adopted the habits of civilized life or not. They 
can not vote. 

Mr. O’Connor. Was that decision after the act was passed and 
based on the act ? 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 141 


Mr. AYickershaim. Yes. 

Mr. Chindblom. I presume the theory is that as long as they have 
the land in common and live together as one large family they have 
their own government and retain their national unity. Where land 
has been allotted to them separately, then they no longer constitute a 
tribe. 

Mr. Hudspeth. You take the tribe in New Mexico, they have a gov¬ 
ernment of their own, their own law. 

Mr. WicKERSHAiM. There was another case in Nebraska following 
this case of the twenty-eighth Nebraska. It is in the thirty-seventh 
Nebraska and begins at page 299. 

The Chairman. Is this section that has been quoted Avith reference 
to the Indians A\diat is referred to as the Dawes bill? 

Mr. Wtckersham. Yes; it is the sixth section of this bill. 

Noav, in this second case, Mr. Chairman, there was another elec¬ 
tion, either tAvo or four years subsequently to the one 3^11 are con¬ 
sidering there, and another contested election arose from it, and it 
Avas betAveen the tAvo judges in that district—Judge Crawford and 
Judge Norris. Norris is uoaa^ United States Senator. This same 
question arose Avith respect to these ver}^ same Indians that a^ou are 
reading about there; but, in this case, hoAA^eA^er, in the meantime, the 
])atents had issued and Judge Norris Avas elected if these Indians 
Avere legal A^oters, and he Avas defeated if they Avere not legal voters. 
So CraAvford brought suit against Judge Norris to determine the 
question as to Avhich one Avas elected. In the meantime the India.ns 
had receiA^ed their patents for the Winnebago and Omaha lands, and 
the court held that having received their patents they Avere then en¬ 
titled to Ante. So that Ave have the tAvo cases under this act. 

The Chair^ian. The opinion is based on the naked fact of their 
hawing obtained patents? 

Mr. WiCKERSHAM. Yes, sir; and it was held specifically that, al¬ 
though those people may have had all the necessary qualifications of 
citizenship, so long as they continued to remain as tribal Indians on 
tribal reservations, they Avere not entitled to vote. That Avas the 
point of the case. It Avas decided by the highest court in the country 
and is laAV. 

Mr. (trigsbx. That AA^as in the State of Nebraska? 

Mr. WiCKERSHAM. Yes, sir. 

Mr. (jRiGSBY. The Indian reservation was not a part of the State? 

Mr. IVicKERSHAM. You are testifying now. 

Mr. GRIGSBA^ I am asking you. 

Mr. WiCKERSHAM. Ill this case of CraAvford v. Norris, page 30S, 
the court saA^s: 

An Indian to whom an allotment has been m-ado under this act, and who pos¬ 
sesses the other qualifications required by the constitution and hnvs of this 
State, is prima facie a Amter., But the evidence in this record shows, as before 
stated, that at the election held November 3, 1891, these Winnebago Indians 
who voted at such election had severed their tribal relations, voluntarily taken 
up their residences separate and apart from their tribes and had adopted the 
habits of civilized life, and this brought them within the last clause of section (> 
of the aforesaid act of Congress. 

An analysis of the “Dawes bill” discloses that it prescribes a rule of nat¬ 
uralization only for Indians born within the territorial limits of the Cnited 
States and for each of those, (1) to whom lands have been allotted in severalty, 
and (2) such as have voluntarily taken up their residence in the Thiitrd Spates 
separate and apart from any tribe of Indians therein and adopted the habits 
of civilized life. 


-142 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


8 o that those questions are all settled in these two cases, and set¬ 
tled specifically and i)ositively. Tliis matter has gone from the 
rerritory of Alaska to the Circuit Court of Appeals, Ninth Circuit, 
on appeal from fludge Jennings’s opinion in Juneau. A man was 
arrested for selling liquor to an Indian, and when the case came up 
he contended that the man was not an Indian, and the Indian was 
brought on, and he said, yes, he was born an Indian, his father and 
mother were both Indians; and they asked him where he lived. He 
lived somewhere by himself, and he wore store clothes, and he talked 
English, and he could read and write, and do all the things that an 
ordinary citizen could do. Judge Jennings held he was not an 
Indian, but the court of appeals of the ninth circuit reversed it, and 
the court based its opinion entirely ni)on these cases which I have 
just read, and this is the case of—what is that case? 

Mr. (trigsby. I do not remember. 

Mr. CHiNi)Rno:\i. Nagle v. United States, 191 Federal, 141. 

Mr. Grigsby. What is the date? 

Mr. WiCKERSHAM. Dated October 2, 1911. 

Mr. Grigsby. That is before Jennings Avas on the bench. 

Mr. IViCKERSiiAM. I do not knoAv but what you are right about 
that. It Avas decided there by the judge, AvhoeA^er he Avas. That 
case AA as reversed in the ninth circuit. I gaA^e some assistance in the 
preparation of the brief in this case and in that case. 

Paragraph 2 of the syllabi reads: 

Tlio ])r(>visi(>iis of net of Fel)ninr.v 8, 1887 (eli. lit), see. U, 24 Stat., 800), relat- 
inji to allotments of lands to Indijins in severalty, that “every Indian born 
within the territojial limits of the Tinted States who has A'olnntarily taken 
nj), within said limits, his residence sejiarate and apart from any tribe of 
Indians therein ami has adopted the halnts of civilized life is hereby declared 
to be a citizen of the Tnited States and is entitled to all the ri^jhts, privileges, 
and imiminities of such citizen,” is in effect in Alaska, and operates to make 
Indians therein, who are descendants of the aboriginal tribes, born since the 
annexation of Alaska, but who have voluntarily taken up their residence separate 
and ajiart from any tribe and adopted the habits of civilization, citizens O'f 
the Tnited States, and the sale of liipior to such an Indian does not con¬ 
stitute an offense under Alaska (’ode ((’r. Troc., sec. 142), as amended by act 
February G, 1009 (ch. 80, sec. 9, 8.1 Stat., (>08), making it an offense to sell 
liipior to an “ Indian,” which teian is defined to include the aboriginal races 
inhabiting Alaska when annexed to the Tnited States and their descendants 
of the whole or half blood ” who have not become citizens of the United States.” 

The Chairman. In other Avords, the court held there, as you con¬ 
tend, that after he lias separated from the tribe and adopted habits 
of civilized life he is no longer an Indian? 

^Ir. WiCKERSHAM. No, sir; he is a citizen of the United States, 
although he may be of Indian blood. 

Tlie Chaiigman. What page is that? 

Mr. WiCKERSHAM. One hundred and forty-one; the sidlabi is on 
page 141. 

The CHAimiAN. You read from the syllabi? 

Mr. WiCKERSHAM. Yes. 

Mr. Hays. Judge IVickersharn, that makes three, and only three, 
Avavs by Avhich citizenship is granted? 

]\Ir. W iCKERSiiAM. Yes, sir. 

Mr. Hays. One is by naturalization, one is by allotment, and the 
other is by a physical separation from the tribe and adoption of 
civilized habits? 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 143 


Mr. AVickeksham. Yes, sir. 

Mr. ('’iiiNDHLojr. There are really only two. There is not the third, 
the usual method of naturalization. Mr. AAdckersham is speaking in 
a general way. There ina}^ be naturalization by an act/)f Congress. 
Some tribes of Indians are made citizens by s])ecial acts of Congress. 

^Ir. (tkigsby. May I ask a (]nestion? 

The Chairman. C'ertainly. 

Mr. (TRiosiiY. AAdth regard to the Indians from Hydaburg that 
were refused a vote in 1910, and the committee allowed in the 1916 
contest, did they not allege that the Hydaburg Indians lived with 
the rest of the Indians at Klawak? 

Mr. \AbcKERSiiA3f. They testified that they were living se})arate 
and a})art, and they were seiiarate and apart. 

Mr. (iRiGsiiY. Didn't they all testify to that ? 

Mr. AAmckersham. No. 

Mr. (trigsby. No distinction about that? 

Mr. AA"tcivp:rsham. Only two were allowed. 

Mr. (iRiGsBY. There were not more than two? 

Mr. AAbcKERSHAM. No, sir. 

Mr. (trigsby. I wanted to know the gentleman's opinion. 

^Ir. AAbc’KERSHAM. You know my opinion. 

Mr. (trigsby. Excuse me, I know your pur})ose. I do not know 
your position. 

Mr. AATckersiiam. The matter was slurred over in the former opin¬ 
ion, but so far as Judge AATlson decided it he decided that those two 
Indians were entitled to vote, but put in on the ground sid)stantially 
that they had adopted the habits of civilization, and he did not pay 
any attention to the fact that thew were not on the Indian reserva¬ 
tion, and in that case we were discussing the rights of the people upon 
the other ])oint—that they had adopted the habits of civilized life 
and not that they were on the reservation. I have not raised that 
point in this case. I have only raised in this case the fact that they 
live on an Indian reservation, and that substantially admits that they 
are all qualified if they are not barred by living on an Indian reserva¬ 
tion. 

Mr. (trigsby. That Avas exactly Avhat I wanted to know—your 
position. 

Mr. AAJckersham. iMy jiosition is that. I liaA’^e only made the 
one point against them, and that is that they live on a reservation in 
tribal relations. That is the only point I have made against them. 
Some of those felloAvs may be all right and are very agreeable 
felloAvs; and most of these Indians are a superior lot of men; they 
are fishermen, and they Avill make good citizens and become citizens 
of the Ignited States. 

Mr. ()'(\)nnor. Does the reservation tend to malce them good 
citizens? 

Mr. AAbc'ivERSiiAM. Not until it fixes their civil status. A gentle¬ 
man from Cermany or from France or from England may be as 
good a man in every way as you and I, but his civil status is fixed 
by the hnv of tiie country. Our law fixes the civdl status of these 
jieople Avithout regard to" their mental status or mental culture. 

So that has nothing to do with it, and I ha\^e not raised that ques¬ 
tion. I am not saying to this committee there are not men on both 
of these reservations who are bright, industrious, and can read and 


144 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


write and wear store clothes and all that sort of thing. I am not 
saying that. That question was raised by Mr. Grigsby at Ketchikan 
and other places; and just as the court says, in this Nebraska case, a 
vast amount, of testimony was taken that was irrelevant and had 
nothing whatever to do with this case. I have not tried to do that, 
and, with reference to those men on that reservation, I do not raise 
that question. 

I want to call the committee’s attention to the case of Davis -y. 
Sitka School Board (3 Alaska, 481-485), which is a case decidjed 
by Judge Gunnison, at Juneau, and I can probably just as well get 
at it by telling you tlie facts. The facts are that a native, an Indian, 
residing at Sitka, was the guardian of a couple of children. They 
belonged to the Presbyterian Church. He run a store, just one of 
these men claims to run a store. He wore store clothes and had 
a cash register and some kind of a music box, and to all outward 
ap])earanees was an ordinary citizen of the United States. 

Ihit he was an Indian and these children were Indians. He wanted 
to send them to the school for the whites and we had a law passed 
by Congress dividing these children in Alaska into different schools, 
and the Indians go to one school and the whites go to another school, 
just as you have in most of the southern States, one school for col¬ 
ored children and another school for white children. And those 
Indians insisted on going to the white school, and they would not 
allow them to go. He brought suit to compel the officers of the 
school board to let his children go to that school. The matter came 
before the court and the court held they were not entitled to go to 
the school. He held that Congress, having provided the other school, 
that they were Indians and must go to the other school. The syllabi 
in this case very vitally states the case. [Beading:] 

Dora and Tillie Davis are the children of Fred Davis, deceased, who was a 
fiill-blood Sitka Indian, and his wife, who was of mixed white and Indian blood. 
Theii* parents were lejially married on December 14, 189(1, and both children 
were born in lawful wedlock and are of mixed blood. After the death of their 
father their mother married Rudolph Walton, a fnll-blood Sitka Indian, who 
is the 2 :iifn*;lian ad litem of the children in this case. Walton owns a house 
in the native village lying on the outskirts of the town of Sitka. 

And I call your attention to the fact it has the same relation to 
the town of Sitka that Auk village does to Juneau, but we will get 
to that later. 

The children live there with their mother and stei)father. Walton conducts 
a store on the edge of the town of Sitka, in which lie manufactures and sells 
Indian curios, and he pays a license as a merchant under the laws of Alaska. 
He rents a box in the post office, and worked out his road tax in the Sitka 
road district, when warned out by the overseer. He and his family have 
adopted the white mini’s style of di-ess. Pie is an industrious, law-abiding, in¬ 
telligent native He conducts his business according to civilized methods, even 
to the installation of an expensive cash register in his store. He spenks, reads, 
and writes the English language. The Waltons are members of the Presby¬ 
terian church. What is the manner of their life, their domestic habits, and 
who are their asi^ociates and intimates does not appear in tlie evidence. Held, 
that, while the Davis children are of “ mixed blood ” they do not “ lead a 
civilized Ufe.” within the meaning of section 7 of the act of Congress of .Tan- 
uary 27, 1905 (83 Stat. 617, c, 277), so as to entitle them to attend the public 
schools maintained for “ white children and children of mixed blood who live 
a civilized life.” Held that mandamus will not lie to compel the school board 
of Sitka to admit smdi children to the public schools therein; it appearing 
that the Government maintained a separate school for Eskimos and Indians 
under the direction and control of the Secretary of the Interior, 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 145 


J he Chaiigman. Does the court in the text there set out the reason? 

Mr. ickersha:m. \es, sir; I have just been readintr to you the 
reason. 

The CirAiiMiAx. You wei-e i-eadinir that from the svllahi. 

Mi*. M Tckehsiia3i. Yes. 

The Chairman. Does the court set it out ? 

Mr. M ICKERSHAM. Very fully. He first starts off by citing the law 
and the other decissions of the courts of Alaska in relation to this 
matter, and then he takes up the case very fully. He goes into the 
question as to whether these people are civilized—had abandoned 
their tribal relations, in other words. They had not. They lived 
there in the Indian village on the Indian gi'ounds in the old com¬ 
munity village, surrounded by all the other indians, and he held they 
had to get away from there and otherwise to live sei)arate and apart 
from the tribe of Indians and to adopt the habits of civilized life; 
otherwise, they were not entitled to send their children to the white 
school. That case is exactly in ]>oint in the matter. 

Xow, we have had several cases decided there- 

]\Ir.'CriiNi)BLOM. Just a moment. I think it is only fair to call 
attention to some language on page 485 of this Third Alaska, where 
the court cites an earlier case, In re Sah Quah (D. C.) JI Fed., 329, 
in which the status of the Alaskan Indian was considered, and Judge 
said as follows [reading] : 

The United States lias at no time recojrnized any trilial in(le]iendence or rela¬ 
tions ainonu these Indians (Alaskan), has never treated with them in any 
caiiacity, but from every acC of (Vm^i'ess in relation to the peoiile of this 
Teri'itory it is clearly inferable that they have been and now are rej^arded as 
dependent subjects, amenable to the penal laws of the United States and subject 
to the jurisdiction of its courts. They are practically in a state of pupilage, 
and Mistain a relation to the United States similar to that of a ward to a 
guardian. 

So much for the (juotatioii. That sustains to some extent, I think, 
my remark some time ago that in Alaska the (juestion of the tribal 
relation is not definitely established, and the are wards of the 
(jovernment, pupils of the Government, and they must be protected 
by the Government, and all that. And this question of the tribal 
relation I do not think is clearly established in Alaska, as the Judge 
seems to argue. 

Mr. Wickersham. It is established when they go on the reserva¬ 
tion and live there as a tribe under the Pjxecutive order of the Presi¬ 
dent of the United States })ermitting a certain tribe to go there and 
live there. 

Ml*. Chjndulo.m. That Executive order, if you will observe, was 
issued at the request and at the instance of the department of edu¬ 
cation. 

iMr. YdcKERSHAM. I know; it has charge of them. 

Mr. Chindbeoai. The department of education re(]uested it for the 
purpose of taking care of these wards of the Government^ 

^Ir. WicKERSHAAi. Yes. 

•Mr. CiiiNDBLOAr. And I say they are not in the same relation to 
the United States as were the tribes with Avhom we dealt as tribes, 
or as nations. 

Mr. WiCKERSHAAi. No. And we have not dealt with the Indians, 
of course, since 1870. Now, Mr. Chairman, there are a lot of other 


181744—20-10 




146 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


decisions along this line and they all go to the same point; they all 
go to the same identical point. All of oiir courts have decided these 
matters; have decided every phase in this case. I did not refer to 
the case Avhich is in second Alaska- 

Mr. Chindblom. Permit me to add, Judge, that I do not pretend 
to express any opinion Avith reference to the merits of your argu¬ 
ment; but this matter came to my attention in another hearing, and 
3 therefore had some information about it. 

Mr. WiCKERSHAM. I Avill tell you, Mr. Chindblom, I liave long 
since learned I do not knoAv all of the law. 

Mr. Chindblom. I certainly do not pretend to. 

Mr. WiCKERSHAM. And I could not tell it all, if I did knoAV it all, 
in so short a time as you gentlemen insist upon my doing it. 1 do 
knoAv this, Mr. Chairman: 1 was a judge in Alaska for some years 
myself; I served on the bench for eight years, and I have ahvays 
taken a great interest in the matter of ethnology and the study of 
the Indian tribes and migration and all that, and have given a great 
deal of thought to that jiarticular branch of the science. And in 
May, 1904, I had occasion to pass on the application for naturaliza¬ 
tion of a man by the name of John Minook, who came before me at 
Rampart, aAvay up in the interior part of Alaska, and sought to be 
naturalized. John Minook Avas the son of a Russian father and his 
mother Avas an T^lskimo, neither of the Avhole blood—I do not remem¬ 
ber Avhether of the full blood or half blood; but, anyAvay, he Avas tiie 
son of this Russian father and Eskimo mother. The matter was 
argued and I refused to grant naturalization, because I had already 
held he Avas a citizen of the United States under the treaty of 1867. 
by which aa^c purchased Alaska. In that treaty Ave agreed all those 
inhabitants of Russian descent, Avho remained in that country for 
three years after the jmrchase, under tlie treaty on March 30, 1867, 
should become citizens of the United States, with all rights, priAU- 
leges, and immunities of any other citizen. 

And I held he Avas a subject of Russia at the time; being the son 
of a trader there and having remained three years, that he became, 
by virtue of that treaty, a naturalized citizen of the United States 
and did not need to get any further action on the part of the court. 
And in doing that, Mr. Chairman, I looked into this matter in A^ery 
great detail, and I took up this act of 1887 and gave full effect to 
that. But I did more; I discovered that in the Ukase of the Czar 
in 1844, the laws of Alaska, the original hiAA^s of Alaska, AAdiich coa^- 
ered citizenship, had estalilished the citizenship status of all their 
people in Alaska. And ^mu Avould be amazed, if you read this case, 
to find Avhat a wonderful interesting sj^stem of laAvs the Russians had 
in Alaska under this charter. For instance, in this charter there is 
a section, an article, relating to cononial civilians: 

Unssian subjects and persoiis of free station, haAdiif? the right to leave 
America, Avho have voluntarily settled in that country, shall form a distinct 
class of society, etc. 

Russian commoners and peasants, temporarily resident in the American 
colonies, voluntarily in the .service of the company, married to creole or natwe 
American Avomen, and who on account of sickness, old age, or long residence, and 
by having become acclimatized and accustomed to the mode of life of the 
country, or who, during long ab.sence from Russia, have lost their near rela¬ 
tives, upon expressing to the company their desire to settle permanently in the 
c(nmtry and handing in a written retpiest for permission so to do, shall be 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 147 


ussigiied to settle on the Kenai shore of America, or in snch other localities 
as the governor may consider most opportune—provided tliat they be within the 
Russian possessions and it shall he the duty of the company to erect for such 
colonists suitable dwellings; to furnish them with implements necessary for 
hunting and agriculture, together with domestic animals, cattle, fowls, 'and 
grain for sowing; to ])rovide them with food supplies for one year; and to 
guard against the possibility of their suffering future privations. 

Sec. 229. Such persons shall be excluded from the class to which they be¬ 
longed in Itussia, after the company shall have communicated with the authori¬ 
ties charged with such matters. 

Sec. 289. They shall be permitted to pursue their previous callings, and the 
said authorities shall demand from the company, on their account, a poll tax 
only, waiving all other assessments to which they were previously liable; such 
poll tax to be levied in accordance with the list of these persons furnished by 
the administration of the company. 

Sec. 231. The names of commoners and peasants so assigned to settlements 
shall be forwarded annnally, tbrough the chief administrative office, with its 
other reports, to the minister of finance. 

Sec. 232, The children of such settlers shall be regarded as creoles, and may 
enter the company’s employ, if they so desire, at the established rates of 
remuneration. 

Sec. 233. They shall be permitted to dispose of such superfluous (commodities 
as they may accumulate, at i)rices ari-anged by agreement with the purchaser; 
except in the case of furs and animal, goods, which shall be sold only at the 
established rates. 

Sec. 234. There shall be no restrictions against the colonial civilians taking 
service with the company under contract, if the consent of the (‘olonial ad¬ 
ministration be obtained thereto. 

Sec. 235. In the allotment of ground to colonial civilians, the com[>any shall 
particularly bear in mind that the natives are not to be embarrassed^ and that 
the (colonial civilians are to support themselves by their own labor. 

Article 3. 

OF THE CREOLES. 

Sec. 236. Children born of a European or Siberian father and a native 
American mother, or of a native American father and a European or Siberian 
mother, shall be regarded as creoles, equally with the children of these latter, 
of whom a spec'ial record is preserved. 

Se(’. 237. The creoles are Russian subjects, and, as such, shall have a right 
to the lawful protection of the Government equally with all other subjects 
belonging to the rank of commoners. 

Then in article 4: 

The settled tribes in the (’olonies include the inhabitants of the Kuril Islands, 
the Aleutian Islands, Kadiak, and the adjacent islands, and the Alaska Penin¬ 
sula ; as also, the natives living on the shores of America, such as the Kenai 
natives, the Chugach, etc. 

Sec. 248. The settled tribes professing the Christian belief are not desig¬ 
nated by any special name; those professing the native faith shall be styled, for 
the purposeV)f discrimination, “ settled tribes of other religions.” 

Sec. 249. These people are recognized by the Government—equally^with all 
the others—as Russian subjects. 

I will not go further into that, but I am calling this matter to your 
attention because some question is made that some of these people 
at Afognak are not legal voters. The depositions Avere taken of 
. some of them by Mr. Grigsby’s agents and attorneys and they are 
mentioned. Xow they were all Eussian creoles. They were all des¬ 
cendants of Eussians,'belonging to the Eussian Church, and they have 
always lived at Afognak from the time of their birth doAvn to the 

present time. . ^ 

The Chairman. Some of those Avere born in British Columbia, 

were they not ? 


148 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. WrcKERsiiAM. Xone of those in Afognak, oh no. There were 
one or two down in Ketchikan. 

The Chairman. Those, of course, were not citizens ? 

Mr. IVicKERSHA^M. Thosc. of course, were not entirely, except if 
tliey were naturalized. And this was up along the coast of Alaska, 
out toward the Aleutian Islands and all those who were Kussian 
citizens under tlie laws of Kussia prior to the sale of the country to 
us we agreed, by the treaty, to make them citizens of the United 
States. 

The Chairman. They were natives of Alaska, however ? 

Mr. IViCKERSHAM. They were natives of Alaska, born in Alaska 
to creoles, and were entitled, of course- 

The Chairman. And by “ creole ’’ you mean either the father or 
mother Avas of Russian blood? 

Mr. AVickersha:vi. Of Siberian or Russian blood. 

Mr. O’Connor. Does that Ukase use the Russian word “creole”; 
Avas that adojited into the Russian language? 

^Ir. IViCKERSiiAAi. It uses the Russian AAmrd Avhich means that, 

Mr. O’Connor. I thought iirobaRly it had been adopted by the 
Russians. 

Mr. AVickersham. It uses the Russian Avord Avhich means “ creole.” 
I can not take that up. My time is running out. 

T only want to talk to 3^011 about the Auk Indian Adllage at Juneau. 
The evidence in this case shoAvs just outside of the toAvn of Juneau is 
the ^Vuk Indian Aullage. I haA^e here the United States GoA^ernment 
map shoAving the location of the Auk Indian Aullage and a suiwey of 
the lands upon Avhich the Auk Indian village stands. 

The Chairman. And that is under an order of the President? 

Mr. AVickersham. That is the third reserA^ation. These Indians 
have lived at this place since the first settlements of the country. 
The Auk Indian Aullage Avas there when the country Avas first settled 
and it has continued to be there from that day to this. The evidence 
of Mr. A^alentine is very full and complete in the record and shows 
the whole situation. He is one of the old settlers in the countr^E 

And then 1 haA^e here the common histories of that country, all of 
Avhich describe and locate the Auk Indian Aullage as being there 
before the Avhite people came there. There is no question about that. 
The Auk Indian village is reserA^ed by the act of C’ongress of 1884 
and subsequent acts of Congress. It provided that lands Avithin the 
jiossession and occupation of the Indian tribes shall not be taken out 
of their possession by auA" person or intruded upon in any Avay. 
Noav, Congress and the land de])artments haA^e held time and time 
again, and therefore those decisions are all cited in mv brief, that 
their possession can not be intruded upon nor ousted as long as they 
liA^e in that way. 

The Chairman. Hoav large a tract Avas reserAed there by Congress? 

Mr. AA^ickershaai. It is on the tide lands very largel 3 ^ Those 
Indians built right along the beach, but they have some land in a 
toAvn back from the beach. Most of it, though, is along the beach or 
along a road they^ have built themselves a long time ago, hoAv long 
nobody knoAvs. AA^e haA^e the Avhole stoiy, though, in the testimony in 
this case b}^ A^alentine, and photographs, etc. 

There is a similar place over at Douglas. And these Indians are 
recognized in all of the authorities as being a tribe separate and 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 149 


apart from other tribes, as the Auk Tribe, and known as the Auk 
Indians. And they have lived there from time immemorial and 
continue now to liAe on their old village community site in a com- 
munit}^ of Indians, a tribe by themselves. 

^ And yet on election day, for the first time in this election of 
November 5, 1918, the United States district attorney at Juneau, at 
the request, I suppose, of the governor, issued a sort of affidavit Avhich 
he sent out amongst the Indians. Mr. Reagan here said he carried 
some of them out, and they AA’ere carried around to those Indians on 
election day; the Indians took tliem up to the polls; at first they 
Avere rejected and they AAould not let them vote. And Mr. Reagan, 
for the district attorney, Avent OA^er to the polls at Douglas and made 
some sort of a rei)resentation to the officers over there, so that they 
gaA^e up their right to be the judge and permitted these natives to 
make this affidaAut, Avhich is not a challenge oath at all, and to vote 
in the election at Douglas. And the same thing Avas done at Juneau. 

The Chairaian. But it is an affidaAut he has seA^ered his tribal 
relations and adopted the Avhite man’s hnvs? 

^Ir. M^K’KERsiiAAr. Yes; but it is a false oath, and Avas false, as 
those men kneAv AAdien they had the affidavits made, because they kneAV 
AAdiere the Indians lived and liA^e noAv—that they liA^ed in tlie com¬ 
munity Indian village. They kneAv they lived there as a tribe and 
had not severed their tribal relations, and they kneAv, Avhen they 
got these Indians to subscribe to these oaths, those oaths Avere false. 
xVnd that is all in the record. They got 28 or /lO of those Indians to 
Amte in that way from this reservation, Avhich is reserved to them by 
act of Congress, Avhere they have liA^ed in that community from time 
immemorial, and Avhere theA^ are noAv living, just as they ahvays did 
live. So that I say that those votes ought to be throAvn out. I am 
sorry I do not haAe time to go into it more fully, because it is a ver}^ 
important matter. 

Mr. Hudspeth. Hoav much more time do you think you need? 

Mr. IVu KiuiSHAAr. Half an hour or so. 

The Chairman. You have three-quarters of an hour. 

Mr. IVicKERSHAAr. I Avant to call your attention, then, that the 
Auk Indians at those places had never Amted before, until this elec¬ 
tion on XoA'ember 5, 1918, except one of them by the name of Kunz. 
Kunz had taken out naturalization papers. The Territory of Alaska, 
some years ago, inissed a hiAv providing that Indians in Alaska, upon 
making a certain shoAving, might luiA^e a certificate by the judge of the 
United States district court shoAving they had seA-ered their tribal 
relations and adopted the habits of civilized life and Avere citizens of 
the United States. 

Mr. ChiiNDBLOAi. The Legislature of Alaska passed that hiAV? 

Mr. M^ickershaai. The Legislature of Alaska passed that law, and 
about 20 of the natiA^es have been allowed to conie before the United 
States district court and haA^e been giAxn that certificate. As to those, 
Ave haAT. not made any serious question. Only one or tAvo of them 
Amted. AVe take the same vieAv you do about that. None of those 
other Indians had done that. If they had all done that, I probably 
would not luiA^e said anything about it; I Avould liaA^e let it go, al¬ 
though they live on the Auk Indian Reservation and not a single 
question can be raised but Avhat they are Auk Indians and live there in 


150 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY, 


the community as Auk Indians, all in a little huddle along this plank 
walk, with their houses side by side and all huddled up side by side, 
just as they have for hundreds of years. 

Here is what Mr. Smizer gave you, page 189 of the record. I think 
I will turn to that and just read it—the statement he sent out to 
them, the affidavit he sent out for their benefit by Mr. Reagan and 
others [reading] : 

United States of America, 

District of Alaska, Precinct of Douglas, ss: 

I, the un(lersi.£?ned, being first duly sworn, do on oath depose and say: I am 
an Indian, horn within the territorial limits of the United States; I have 
voluntarily taken up within said limits my residence, separate and a])art from 
any tribe of Indians herein, and I have adopted the habits of civilized life; 
and I am a citizen of the United States and entitled to all the rights, privileges, 
and immunities of such citizens; and I claim the right to vote at the election 
holden in the Teriitory of Alaska on November 5, 1918, for the election of a 
Delegate from said Alaska to the Congress of the United States and other 
officers. I claim my citizenship rights under the provisions of the act of Con¬ 
gress of the United States, approved February 8, 1887, and claim the right to 
swear my vote in if challenged, as per section 401 of Compiled Laws of Alaska, 
at page 2G5, and ask the judges of election to read said section. 

Subscribed and sworn to before me, this 5th day of November, 1918. 

.To the judges of election: 

I have been asked for an opinion as to the right of the Indians to vote. I 
will state that Indians who have severed their tribal relations, and live separate 
and apart from any tribe of Indians, and have adopted the hibits of civilized 
life, are citizens of the United States and are entitled to vote the same as white 
citizens. This under the act of Congress approved February 8, 1887, section 
6 thereof. 

The territorial act of 1915 is merely one form of prima facie evidence of the 
Indian’s right to vote, and is not exclusive of other forms of proof. It is my 
opinion that any Indian who makes the above affidavit is prima facie entitled 
to vote. 

James A. Smiser, 

United States Attorney. 

Juneau, November 5, 1918. 

The evidence shows that Mr. Reagan here carried those things 
around to the polling places and distributed them, and that Seward 
Kunz, an Indian who is an interpreter there at the courts, carried 
it around to other places, and then they prevailed upon the election 
officers to allow the Indians to vote upon making that affidavit. 

Tlie Chairman. Did not the election officers, when they challenged 
them, require them to sign the ordinary challenge oath ? 

Mr. WiCKERSHAM. No; because they had lived in the Territory a 
year and in the precinct for 30 days. There was no question about 
that. All they required them to do was to take that oath, and you 
will find all those oaths are in the returns, so I am informed. 

The Chairman. But the affidavit also required them to be citizens 
of the United States? 

Mr. AVickersham. Yes. 

The Chairman. That was one of the requirements in the chal¬ 
lenge oath ? 

Mr. AATckersham. Yes; but this United States attorney says, ‘‘It 
is my opinion that any Indian who makes the above affidavit is jirima 
facie entitled to vote ”—whether it is true or false, and it was false. 
It was false because the facts are stated in this record, perfectly 




WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 151 


clear and full, that these Indians lived, most of them, in the Auk 
village and the others lived over in the Douglas village in the same 
condition exactly, on their old village site, on the Indian reservation 
on which they had lived from time immemorial, and where they 
were born and where their old council house stands, and all that kind 
of thing. So that I say to the committee those votes are clearly 
illegal; even if those down on the two reservations created by the 
President of the United States are not illegal. There is no possible 
excuse to allow the Auk and Douglas Indians to vote; they never 
voted before and have never voted since. And everybody knows it is 
a fraud because it has been settled by these decisions in the courts of 
Alaska time and time again. 

Mr. Hudspeth. Wliat kind of a house is that? 

Mr. AVickersham. The old council house is shown in the record 
here as one of the old community houses; it has a sign over it, and 
they all live there in common, and it is right in the center of this 
Auk Indian village. 

Mr. Hudspeth. It is not a public meeting house, is it? 

IVIr. W iCKERSHAM. Yes; a public community house where they all 
live. 

Again, Mr. Chairman, at pagy 174 of the record is the testimony 
of one of those officers. He testified that Mr. Reagan, who sits here, 
across the table, brought these papers in there, and talked to them 
about the situation. This is his statement, the Avitnesses statement. 
The witness is Richard McCormick, who lives at Douglas and says 
he has lived there for many years, and who was an election officer at 
this election. He was one of the judges of election on November 5, 
1018. He says [reading] : 

Well, daring the afternoon Mr. Reagan came in and bid us the time of day, 
and pulled out a piece of typewritten paper, and read it off to us. It was sup- 
po-^ed to explain the qualilications of an Indian to vote, telling about how he 
severed his tribal relations and adopted the habits of a white man, living like 
a white man, so I asked him how we would know whether they had severed 
their tribal relations or adopted the habits of a white man—how we were going 
to pass judgment on whether they should vote or not. He said if they had 
one of them papers that was qualification, and had signed the paper. I asked 
him if they signed the paper, and he said, “ Yes, they sign the paper.” 

Q. John .1. Reagan?—A. John J. Reagan. 

Q. Assistant'United States attorney at that time?—A. Yes, sir. 

(}. He had been assistant United States attorney for several years?—A. Ye^-’. 

Q. Now, what time in the afternoon did Mr. Reagan come to the polling place 
and make these statements to you?—A. Well, I should judge between 3 and 4 
o’clock. 

Q. In the afternoon?—A. I didn’t notice the time particularly. It was a wet 
day, and I wasn’t paying much attention to the time, but it was along between 
3 and 4 o’clock in the afternoon anyway. 

Q. Now, did you ask him for any information about that subject or did he 
come and volunteer it to you?—A. I asked him about things, how he would 
be able to judge whether they were qualified to vote or not when they came 
along. 

Q. What I mean is this: What started the conversation? Did he come and 
tell you that some of these Indians had the right to vote, or that he expected 
some one of them to vote?—A. He came along and pulled out this paper and 
started to read it to us, telling us about the law in regard to the Indian vote. 

Q. Did he do that before you asked him for any information on the sub¬ 
ject?—A. Certainly did; yes. We didn’t ask him anything about it because 
he introduced the subject by i)ulling out this paper and reading it to us. We 
didn’t' know what he was doing over there.* 



152 


WK^KERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Tliat was done at these various places, and those men say very 
frankly they gave u}) their judgment and let these Indians vote who 
made this affidavit, which was a false affidavit, and they all knew" it. 
KA'crybody kneAv it. These Indians were Aoted in a l>ody in that 
w ay, and the record is j)erfectly clear on the subject. 

Mr. OT'onnoh. Hoav many of them Avere there? 

Mr. IViCKERsnAn. I think about 28 at both places. 

Mr. CiiiNDHLOAr. I do not suppose you examined any of the In¬ 
dians? 

Mr. IVi( KKRsiiA.Ar. Oh, yes. sir, Ave did; as many as Ave could find. 
One or tAvo testified they voted for Mr. Sulzer and one or tAvo of 
them Aa)ted for me. 

Mr. O’Connor. Does their testimony disclose the real facts in the 
case as to Avhether or not they had abandoned their tribal relations? 

Mr. MncKERSHAAr. Oh, yes; and shoAvs Avhere they live, and all 
that sort of thing. And Ave shoAved by other Avitnesses Avhat the con¬ 
ditions Avere surrounding that i)articular })lace. 

Mr. O'Connor. Some of those same Indians avIio made this affi- 
da vit ? 

Mr. IViCKERSHAAi. Oil, .ves. They Avere on the Avitness stand and 
testified. But Ave depended very largely on the one Avitness, Valen¬ 
tine, Avho has liA"ed there 80 or 40 years and been mayor of the town 
for 10 or 11 terms, to shoAv the facts. Tie is the oldest settler* there. 

XoAv. in the I’ejiort of the Avork of the Bureau of Education on 
the natiA^es of Alaska for 1018-14 the repoi’t says: 

The act of May 17, 1884, providing' a civil j?oveniment for Alaska, stipulated 
that the natives should not he distnrhed in the possession of any land used 
or occupied hy tlnan. However, with the influx of Avhite men the villaj?e sites, 
hunting: g:rounds, and tishins waters frequented hy the natives from time 
iimnemorial ha\'e often been invaded, native settlements exploited by unscrupu¬ 
lous traders, and the piistine health and vij?or of the natives sapped by the 
Avbite man’s diseases and by the white man’s liquor. To protect the iiatiA’es 
the Bureau of Education has adopted the policy of requesting: the reservation 
by Executive order now, before Alaska beconies more thickly settled by white 
immigrants, of carefully selected tracts to Avhich large numbers of natiA’es 
can be atti-acted and Avilhin which, secure from the intrusions of unscrupulous 
white men, the natiA'es can obtain fish and game and conduct their own indus¬ 
trial and commercial entei-prises. To the humanitarian reasons supporting 
this policy are added the practical considerations that Avithin such reserva¬ 
tions the Bureau of Education can concentrate its work and more effectively 
and economically influence a larger numbei' of natives than it can reach in 
the small and widely separated villages. Such reservations have been made 
of Annette Island, of St. laiAvrence Island, and of tracts of land at Hydaburg, 
KhiAvock, Fort Yukon, Klukwan, Port (Jravina, Fish Bay, Long Bat, and on 
the banks of the Kohuk River. 

Tlie CiiAiRAiAN. Tliat is the re])ort? 

Mr. MTckersiiaai. That is the report; I Avas reading from the 
rejiort, at jiage 7 of the report. And a little further along in this 
report, at page 11, is given a list of persons in the Alaska school 
service Avho Inne charge of those Indian schools on those reserva¬ 
tions, beginning Avith IVilliam T. Lopp, superintendent of education 
of natives of Alaska and Alaska division, and then different em¬ 
ployees of the Mhishington office, Hamilton, Thomas, and ^Villiams. 
Then employees in sui)ply and disbursing office, Seattle—five per¬ 
sons, Avhose names are giA-en. ^ Then employees in Alaska, district 
siiperintendens of scliools, IValter C. Shields, AndreAv N. Evans, 
(ieorge E. Boulter, Henry O. Schaleben, M^illiam G. Beattie. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 158 

The Territory is divided into all those districts. And then fol¬ 
low s special disbursing agent, reservation phvsicians, nurses, and 
teachers of sanitation, contract hospitals; and* then follows a long 
list of teachers and school attendance in 1013—14, giving tlie names 
of the school-teachers—a long column. I call that to the attention 
of the comniittee. You^ will take judicial notice of the laws, and all 
that kind of thing. We have a complete system of Indian reserva¬ 
tions and Indian schools, and all that established in Alaska, and in 
charge of those i)ai’ticular I'eservations. 

The CiiAimiAN. I think you stated there they are furnished with 
physicians? 

Air. Y iCKEK'snA:\i. 'I es: and medicines and evervthing of that 
kind. 

The Ciiaii;:man. Does the (xovernment furnish those without 
charge ? 

Mr. Wkuveijsiiam. It only furnishes the physicians and medicines, 
and everything of that kind. The Government does not feed them, 
but it maintains on those reservations these schoolhouses, and it 
maintains a physician there, just as it does on all reservations. 

The CiiAiiniAN. Is it his duty there to do this woi*k without refer¬ 
ence to outside work, or is he just a local physician ? 

Mr. WTCKERSirA:si. Sometimes they have a contract physician and 
sometimes they send the local physician there. Dr. French, who did 
this job at Ketchikan, is down there as a ])hysician for the bureau of 
education in that district. There may be physicians, of course, who 
will go around to several of those reservations if they are near to 
each other and in different localities where the Indians have their 
community houses. 

The GHAimiAX. And paid exclusively by the Government? 

Mr. AV 1 CKERS 11 A.M. Paid exclusively by the Government; yes, sir. 
XoAv, we put Mr. Ilawksworth, a superintendent of schools for south¬ 
eastern Alaska, on the witness stand. Mr. Ilawksworth testified sub¬ 
stantially to all these thine:s I have been saying to you. Kev. I). 
Waggoner, who had been there for many years, a school-teacher on 
the Klawak and Hydaburg reservations, testified to all those facts. 
And the whole matter has been very fully covered by the evidence in 
this case. 

And, boiled down to a single })ro])osition, I have made objection 
to three reservations only, Klawak, Hydaburg, Auk, and the Douglas 
reservations, all those places where they have their old community 
villages reserved to them by act of Congress. And I object to those 
men, not because I have made any objection now and said to you they 
did not wear store clothes. Many of them do. Many of them talk 
good English—not so many of them at Auk as at Klawak, but some 
of them do talk good English and some of them can read and write, 
and once in a while there is an Exhibit Xo. 1, who keeps store, like 
this man, I\udol])h lYalton, of Sitka, Avho is a higher type than 
Durkin and any of those other men, Avho have been ])ut on as ex})erts 
and standards to go by. Me is higher in education than any of them, 
and yet the court of Alaska held he was not a citizen of the XTiited 
States. 

I Avant to call the court's attention—I use the term ‘‘court’' all the 
time. This is a court created by the Constitution of the United 


[ 


154 WiCKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

States; it is the highest court in the land for cases of this kind and 
I have the greatest respect for it as such, and you will accept my 
apology for using the word ‘‘court,” as one gets into the habit of 
doin^ it. There is another decision by the court which passed on the 
question of the right of these Indians to form a town site. The ques¬ 
tion came up as to Haines, whether the Indians could assist in the 
formation of a town site and sign a petition. Under the law of 
Alaska, where there is a community of 300 white people, they may 
get up a petition of so many names and apply to the court and, on 
examination of the situation, if the court shall find that there are 
300 people there, and it is a permanent community, and so forth, the 
court will permit them to be incorporated as a municipal incorpora¬ 
tion. An application was made for the incorporation of the town 
of Haines and objection was made to the application upon the ground 
that a large number of Indians had signed, and the matter came 
squarely before the court as to whether the Indians were citizens of 
the United States and were capable of signing a petition for the 
organization of a town site. And the court held, straight up, they 
were not. 

The Chairman. What tribe of Indians? 

Mr. WiCKERSHAM. The Haines Indians, about 90 miles north of the 
Auks, and they are of a similar type of Indian, exactly, except they 
are a little distance away from them. 

The Chairman. Were they on their reservation? 

Mr. WiCKERSHAM. No; they were not. They were on a site, Mr. 
Chairman, just like this community site, where they have lived from 
time immemorial and the attempt was made to form an incorporated 
town around and including them, and the court held they were not 
capable of signing that petition because they were not citizens of the 
United States. I will try to find that case. 

Mr. Hays. You are not citing this for the purpose of challenging 
the votes of those particular Indians, but to show their civil status ? 

Mr. WiCKERSHAM. To show their civil status; yes. I challenge 
their votes, yes; they were not citizens of the United States and not 
entitled to vote. They have to be citizens of the United States under 
the statute I read to you. 

Mr. Hays. But in "this particular case, are the votes of those par¬ 
ticular Indians- 

Mr. WiCKERSHAM. Oh, no; I am just showing the rule adopted. 

Mr. Haa^s. That is what I mean, the rule determining the civil 
status of the Indians. 

Mr. WiCKERSHAM. Yes; that is all I want to show by that. If I 
can not find it, this is what the court decided in that Haines case, 
and Mr. Grigsby is perfectly familiar with it. The court held the 
Indians of Haines could not sign that petition, because they were 
not citizens of the United States, and that the law would not permit 
the Indian community to be incorporated. That is the short of it. 
And the court refused to grant the permission to incorporate the 
town of Haines because it did not have 300 names of white men who 
were legal voters on the petition. 

The Chairman. Have you a correct reference to this decision in 
your brief? 

Mr. WiCKERSHAM. I have, yes. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 155 


Mr. CniNDBLOM. What is it, a Nebraska case? 

Mr. WiCKERSHAM. No; an Alaska case. 

Mr. Chindblom. That is what I mean. Maybe it is one of those at 
the bottom of page 124? 

Mr. IVrcKERSHAM. No; it is not one of those. It is the case of the 
Haines town site. Mr. Grigsby is familiar with it, but he probably 
can not remember it. 

Mr. Grigsby. No; I do not remember the name of the case. 

Mr. WiCKERSHAM. I waiit to find that case; it is quite important 
and I will find it in just a moment, Mr. Chairman. I will call your 
attention, then, to the case of Johnson v. Pacific Coast Steamship 
Co., in 2 Alaska, at page 224. In this case, the court held the evident 
purpose of Congress in its legislation in relation to the property 
rights of Indians in Alaska was to protect the natives in the posses¬ 
sion of lands continuously claimed and occuiped by them, but up to 
this time Congress has not fixed the terms by which they might 
acquire title thereto. 

The court held [reading] : 

The evident purpose of Congress in its legislation in relation to the property 
rights of Indians in Alaska was to protect the natives in the i)ossession of lands 
continuously claimed and occupied by them, but up to this time Congress has 
not fixed the terms under which they might acquire title thereto. It is evident, 
therefore, that the complainants in this action can not have so much of the 
relief prayed for as would declare that the defendants were holding the lands 
in trust for their benefit or require them to convey to the several complainants. 

Lands occupied and used exclusively by Indians at the time of the passage of 
the act of May 17, 1884 (23 Stat, 24, c. 53), could not be disposed of by the 
Interior Department to persons other than the native occupants, and a patent 
issued to such other persons would be without authority of law and void. 

Indians, natives of Alaska, though living in villages, held not to be entitled 
to claim village sites, under section 11 of the town-site act of March 3, 1891 
(26 Stat., 1099, c. 561; U. S. Comp. St., 1901, p. 1469). 

That was the point I was trying to get in the Haines case, too. 
That is exactly the point the court decided in the Haines case and 
that is decided in the United States district court in Alaska—Indians, 
natives of Alaska, though living in villages, as they do here at Auk, 
held not to be entitled to claim village sites, under section II of the 
town-site act of March 3, 1891, which gives authority to incorporate, 
etc. 

The Chairman. Are you reading from the text ? 

Mr. WiCKERSHAM. I am reading from the syllabus in this case of 
Johnson v. Pacific Coast Steamship Co., at page 225, of 2 Alaska. 

Here is the Haines case: A petition was presented for the incor¬ 
poration of Haines Mission under the act of Congress providing for 
the incorporation of any community in Alaska having 300 or more 
permanent inhabitants. The proofs showed that the court found that 
there were 216 white persons living within the proposed town and 
151 Indians: 

Held, The act of Congress requiring at least 300 permanent white inhabitants 
to incorporate, that Indians are neither electors nor citizens and can not be 
counted, and the petition denied. 

The Chairman. Is that from the text ? 

Mr. WiCKERSHAM. No; that is from the syllabi. 

The Chairman. Will you read the text ? 

Mr. WiCKERSHAM. Yes; I will. 


156 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


On tlie liearin.ir nf tlie i)etition for the ineorixtration of Haines Mission the- 
eoiirt held that the Indians living within the town limits were neither electors 
nor citizens of the Xhiited States, and should not he considered in calculating; 
the 800 i)erinanent inhahitants necessary to incoi-porate. 

Mr. Chixdblom. Do tliey state the facts upon which they hold 
that? 

Mr. AVickeksham. Yes; the facts were all stated here very fully 
in the decision of the court. [Heading:] 

The petitioners herein are asking; that the settlement now known as Haines 
^Mission, situate on (he western shore of li.vnn (Janal, he incorporated as a 
municipality, etc. 

Afjainst this petition four jtrotests have been tiled. The first of these i.s 
sijrned by 51 natives, and sets uj) that the .'<;ii;ners all live within the ])i-oposed 
cori)orate limits and have valuable i)roperty therein, which would he taxable if 
brought within the limits of the munieipality; that they are not citizens,, 
and can not bec<uue such under the existing laws, and could have no voice in 
the management of the town if incorporated, and they i)ray that they be not 
counted “ resi<lents of tlu‘ town for the pur])ose of incor])orating; and that, if 
the said town of Haines is incori)orated, the present proposed lines be changed, 
so as to exclude the Indian or nativ(‘ village from the municipality.” 

The second i)rotest is signed by Id i-esidents of the town, among whom are 
a numher of ])rominent Haines Imsiness men. This piadest contains the alle¬ 
gation; 

“That thei’e are only about 150 wliite ])ermanent inhabitants i-esiding within 
the ])roi)osed corporation ; that we do not believe the law contemplates count¬ 
ing the Indians as inhabitants for the i)ur[*ose of incorp(u-ation,” etc. 

And that question was specially raised by these objections, and the 
court says, on page 592 [reading] : 

The first of these i-equii‘ements is found in the opening sentence of chapter 
1778, paragraph 1, already referred to, the language of which is: 

“That any community in the district of Alaska having 800 or more per¬ 
manent inhabitants may incori)orate as a municipal corporation, termed a 
town, in the manner hereinafter jirovided * * 

Thus it appears at once that, before a community may seek to be incorpo¬ 
rated into a municii)ality. it must have “ three^hundred permanent inhabi¬ 
tants.” Is it that whites alone, or that both whites and Indians, are to be 
counted? The answer to this (piestion is juitent from a careful perusal of the 
act. It is plain that that i)hra.se includes males and females, and that it is 
restricted neither to electors nor taxi>ayers. 

It is also plain, I think, that Congress did not intend that natives should be 
counted, unless they were to be considered citizens. Suppose, for the sake of 
the argument, that the natives, who are not, and can not under the existing 
laws pertaining to Alaska become, citizens, are to be counted in making up the^ 
retpiisite 800. In the present instance, tluu-e are 210 whites and 152 natives. 
Among the.se whites are a considerable number of males who are either citizens 
or have declared their intention to l)ecome such, and who have resided in the 
community the recpiircxl period. These aiv by statute (!<ec. 2, c. 1778, supra),, 
declared qualified electors, and it is to them and to them only that the ultimate 
(luestion of incorporation would be left to be decided by the ballot. Idie natives 
are not electors, and consequently could have no voice either in the determina¬ 
tion of that (piestion or in the subs(^quent management of the affairs of the 
municipality, in the event that the incorporation should be carried. Rut let us 
follow this construction a little further to its logical conclusion. 

Tliere are in Alaska settlements com])ased of 800 <»r more nati\’es, in which 
for the sake of argument, let us suppose (and this is by no means an impo.s- 
sible or extravagant supposition) that there are no white men who are electors.. 
There are in these settlements more than 60 “ male adults ” who are “ bona 
tide residents of the community.” Thus, under this construction, they would 
be qualified to file a petition for incorporation. For the requisite nimiber of 
inhabitants is here, if Indians are to be counted. But it may lie said that such 
a petition would not be considered under such circumstances. Why not? It 
might be that the condition of the natives and the community generally would 
be much benefited by incorporation, that the natives themselves are mentally 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 157 


<?apable of maiiasiiig their municipal affairs, and that every reason would point 
to the granting of the petition. What would be the result under these circum¬ 
stances, where every requisite preliminary to the granting of the ])etition was 
present, and where every reason would move a judge to grant it? The statute 
requires under those circumstances that the .judge shall order an election “ to 
determine whether the people of the community desire to be incorporated,” 
and to that end he must appoint “ three qualilied voters ” to act as judges of 

such election.” 

Section 2 provides: 

“ That every male person twenty-one years of age who is a citizen of the 
United States or who has declared his intention to become such, and who has 
I'esideil continuously one year next itreceding tbe election in the District of 
Alaska and six months preceding the election within the limits of the proposed 
eori)oration, shall be qualilied to vote at said or any subsequent municipal 
•elecrion.” 

Hut within the i»roi)osed boundaries of such a community there could be found 
persons neithei* (pialitied to fill the ottice of the judge of election nor to vote 
upon eitlu'r the (juestion of incorpoi-ation or for officers to manage the affairs 
of the municipality. Wliat would be a more futile proceeding than to enter¬ 
tain su(*h a petition and grant an ordei’ thereon; and .yet, if the natives in 
the case at bar ai*e to be counted in making up the 300 inhabitants for the pro¬ 
posed town of Haines, consistency demands that a petition filed under the 
circumstances similar to the case just stated must be considered and an order 
issued thereon. It must be plain to anyone who stops to consider the situa¬ 
tion that Congress, when it enacted this statute, had no intention of placing 
up(ui the bo(d<s an act which would be impotent or filled with inconsistencies, 
and to place upon this act a construction that would develo]) into such a situa¬ 
tion as that would, in my opinion, be to place upon it an interpretation never 
intended. 

But (‘ounsel for petitionei‘s argues with much ingenuity that certain of the 
natives residing at Haines are citizens of the United States and must be counted. 
The question as to the citizenshii) of the natives of Alaska has frequently 
been presented to this court on other occasions, and I am of the opinion that 
the act of Congress of February 8, 1887 (24 Stat., 388, c. 199), did not come 
within the provisions of article 3 of the treaty of cession, to wit: 

“ The inhabitants of the ceded territory, according to their choice, reserving 
their natural allegiance, may return to Russia within three years, but if they 
should prefer to remain in the ceded territory they, with the exception of un¬ 
civilized native tribes, shall l)e admitted to the enjoyment of all the rights, 
advantages, and immunities of citizens of the United States and shall be main¬ 
tained and protected in the free enjoyment of their liberty, property, and 
religion. The uncivilized tribes will be subject to such laws and regulations 
as the United States may from time to time adopt in regard to aboriginal 
tril)es of that country.” 

In my opinion this act had no reference to the natives of Alaska, and Con¬ 
gress 1ms yet t<> in their behalf. That there are many natives who are 
to-day capable of becoming citizens and who would make better citizens than 
hundreds of men who are annually given the franchise, I grant, but Congress 
has not yet seen tit to open the doors to the Alaskan natives by legislation. 

It is with much regret that I have arrived at the conclusion that the natives 
may not be counted, for it is undoubted that this community would be much 
beiiellted in every way by incorporation. But, since the coinmunity is at this 
time insuflicient in number of inhabitants, I have no discretion in the matter, 
but must deny the petition for that reason. 

Mr. (tijigsry. He holds they could not do it; he holds contrary to 
the Circuit Court of Appeals. 

Mr. Wtckeksham. To some extent, that matter has been reversed 
by the Nagle case, but not entirely, because the Nagle case does not 
hold Indians in a community of that kind could vote. 

:Mr. (buGSBv. Oh, no; I do not claim that. 

Mr. MTckersham. Oh, no. And the decisions of the courts in 
Alaska are all one way, that these Indians are not allowed to incor¬ 
porate even their own Indian villages; they can not sign incorpora¬ 
tion papers for incorporating a community where there are 300 


158 WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

white men or less, and they are needed to makonp the number. And 
the court holds, straight up, they are not entitled to vote and not 
electors in the Territoiy of Alaska. 

Now, Mr. Chairman, there are a lot of decisions along this line 
in Alaska, and I am only going to cite you to tAvo or three of them. 
In the case of United States v, CadzoAv, the court held: 

The United States has ?:uaranteed to the Indians in Alaska the right t<> 
the occupancy and possession of the lands occupied by them when the acts 
of Congress of May 7, 1884 (23 Stat. L., 24, ch. 53) March 3, 1891 (26 Stat., 
1095, ch. 56) ; May 4, 1898 (30 Stat.,.412, ch. 299) ; and June 6, 1900 (31 Stat., 
330, ch. 786) were passed. 

Citing all the acts of Congress which reserve those lands for the 
benefit of the Indians. 

In the next case of Grosivold v. Whelpley, the court held: 

A reservation may be made in Alaska either by treaty, by Executive order, or 
by an act of Congress, and all of these methods are expressly recognized by 
the homestead and pre-emption laws. No set form of words (*r phrases is neces¬ 
sary to set aside a reservation ; the sovereign is not parting with the title, 
but only setting it apart to be used for specific purposes. It is enough, if there 
are sufficient words to indicate the purpose of the power that can act, to show 
that in a given case it is intended to act, etc. 

To make a long story about this matter short: These people on 
these three Indian reservations could not vote, because they were 
living in a sort of community; they Avere living in tribal relations as 
the Auk Indians, the KhiAvak Indians, and the Hydaburg Indians; 
they were living on reserA^ations created by the President of the 
United States and by act of Congress and Avere not living upon al¬ 
lotted lands but living together in a small community. Those in 
HATlaburg had left the old toAvns at Hydah, and other places and 
were brought up there by the Bureau of Education. That is all testi¬ 
fied to by officials, and they Avere brought up there for the'purpose 
of forming an Indian community, so that they could escape from the 
white people. 

Now, our Territorial legislature has passed another law- 

Mr. O’Connor. Before they were brought to this reservation Avould 
they have enjoyed the right to A’^ote? 

Mr. WicKERSHAM. Oh, no; not at all; no more than the Auk In¬ 
dians Avould, because they were living in a community, not separate 
and apart. They were living in their old Indian community house, 
and in the old Indian community, all huddled up together as they 
had for a long time. And they are a very interesting race of In¬ 
dians; they have put up their totem poles, making it a very inter¬ 
esting village, and, in time, Avhen permitted by the officers in Alaska 
to assume the habits of civilized life and become citizens, Avill make 
good citizens. The Legislature of Alaska passed another Irav for 
the incorporation of Indian villages. They are permitted to form 
Indian communities—Indian villages. 

Mr. Chindblom. The laws of Alaska, 1915, page 24. 

Mr. Mtckersham. An act proAuding for local self-goA^rnment in 
certain native villages is the Territory of Alaska. Here is an act 
of the Legislature of Alaska permitting these Indians to form com¬ 
munities of their OAvn. And the Indian agents, the Indian officers, 
the heads of their schools, etc., testified, Mr. HaAvksAvorth and Key. 
Waggoner, they both assisted in the preparation of those bills—or 




WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 159 


Waggoner did. ITawksworth said lie did not know anything about 
it at the time, but he helped to carry it out afterwards. And they 
passed this bill for the purpose of forming those communities. I 
want to read it to you [reading] : 

Section 1. That any village in the Territory of Alaska, whose inhabitants 
are nieinhers (h- descendants of ineinhers of the Thilinget, Tsiinpsean, or Hydah 
Indian Tribes, or other native tribes of Alaska, having not less than 40 per¬ 
manent inhabitants above the age of 21 years, may form a self-governing vil¬ 
lage organization for the pnri)()se of governing certain local alfairs, as herein¬ 
after described and in the manner hereinafter provided. 

The next section provides the method of securing organization, and 
then the qualifications of those entitled to be members in such self- 
governing community village are fixed as follows [reading] : 

Sec. 3. That the qualifications of an elector hereunder shall be as follows; 
He or she shall be a meniher or descendant of members of the Thilinget, Tsimp- 
sean, or Hydah people, or people belonging to other Alaskan Indian Tribes, 
and shall he over 21 years of age, and shall have resided within the limits of 
the village proposed to be organized for a period of six months. 

And it specified the boundaires and so forth. Then they are per¬ 
mitted to hold their own elections in their own villages at different 
times from when we hold ours. And the evidence shows here that 
both Klawak and Hydaburg are organized under this act as Indian 
villages and presented a petition, showing they are tribal Indians and 
living on the tribal reservation, to form a tribal reservation for their 
own government, not under the laws of the United States but under 
the laws passed by the Territorial Legislature. So that I can not 
discover what sort of an argument anybody will make who will 
say they are not tribal Indians, because the Bureau of Education 
has no jurisdiction over them if they are not tribal Indians. Under 
the laAvs passed by Congress the appropriations are made for the 
support of Indian schools in Alaska, and those schools are supported 
in these two towns and paid for out of Government appropriations, 
and the white man’s schools are supported by the white man and paid 
for by the white man, separate and apart entirely, and their govern¬ 
ment officials are there. 

Mr. Grigsby. Do 3-011 consider that a valid act—that Territorial 
act you have just read? 

Mr. WiCKERSHAM. I Consider, as long as they have complied Avith 
it and organized under it and carried it out, that it is valid. 

Mr. Chindblom. You mean it is an estoppel? 

Mr. WiCKERSHAM. In the nature of estoppel. 

Mr. Chindblom. Against them ? 

Mr. WiCKERSHAM. They have admitted they were Indians. They 
signed this petition as Indians. 

^fr. Grigsby. The legislature had a right to pass the act? 

Mr. WiCKERSHAM. I do not say that at all. I say this: I do not 
knoAv Avhy the legislature did not have a right to pass it. 

Mr. Grigsby. Neither do I. I think they had a right to pass it. 

Mr. WiCKERSHAM. I do not admit they had any jurisdiction over 
the Indians, if that is what you are getting at; of course not. Here 
is an act passed by the legislature, though, and those people organ¬ 
ized under that act, incorporated and organized Indian municipali¬ 
ties on those reservations, and they are bound by it and can not Amte 
as long as they stay there in those tribal relations, under the United 
States statutes. 


160 WICKEESHAM VS. SULZER (DECEASED) AND GRIGSBY. 


jNfr. CiuNDRLOM. Of course, if representatives of the (xoveriiment 
assisted in the formation of those villages- 

^Ir. WiCKERsiiAM. They did. 

Mr. CiriNDRLOM (continuing). Then, to that extent the estoppel is 
weakened as against them? 

Mr. WicivERsiiA^t. I do not think so; I think it is strengthened, 
because it is testified they did it for the purpose of giving those 
Indians some form of organization away from the white men. They 
testified they Avere tiying to get them aAvay from the Avhite man’s 
GoA'criiment, and to go under the control of an Indian form of gov¬ 
ernment; and, as Aveak and impotent as it is, it is an Indian form of 
goA’ernment. 

]\fr. CniNDimon. But if the Indians acted under the guidance and 
direction of others, of course it becomes less forceful against them. 

Mr. WiCKERSHAM. They did act under the officers of the United 
States Avho Avere sent there to protect them, and to educate them, and 
all that sort of thing, and to give them medicine Avhen they Avere 
sick, etc. There is no room to argue it can Aveal^en the situation 
if you gentlemen only could get it presented to you a little better than 
I have presented it. These three places are Indians reservations, 
held so by the courts. 

Now, there is a decision by the Secretary of the Interior in respect 
to this particular })lace at the Auk village, in Avhich he giA^es a 
lengthy opinion. Avliich I have hei’e someAvhere, in Avhich he passes 
u])on the legal situation at this Auk Indian Aullage, and the Secre¬ 
tary of the Interior has instructed the Commissioner of the General 
Land Office Avith respect to the laAv applicable to this particular 
reservation here at the Auk Indian village. He says it is an Indian 
village and sul)stantially a reservation; that the AAdiite man must keep 
aAvay from there. We sought to get a bill through Congress one 
time to do something Avith these tide flats, and the Bureau of Edu¬ 
cation and the Secretary of the Interior interfered and Avould not let 
us touch them, holding they Avere their lands, and they kept us from 
doing anything about it because it Avas an Indian reserA^ation. 

The Chairman. Hid these Indians all Amte in one precinct? 

Mr. 'WiCKERSHAM. No; they voted over at Douglas and Juneau, 
and they all voted, so I am informed by the gentlemen present, 
upon these false statements Avhich they Avere induced to sign by the 
district attorney there, and he instructed them that if they signed 
that affidavit they Avere entitled to vote—not if they complied Avith 
those provisions and made proof that they Avere entitled to vote, 
but if they just signed the affidavit. And I am told a lot of those 
affidaAuts are here in the returns and you can find those. 

The Chairman. The affidavit, “if true”; the}^ (pialified it? 

]\[r. ’\W('KERSHAM. Yes; if true. It stated the hnv correctly; there 
is no question about that. But he Avound up by saying if they just 
sign this affidavit, it does not make any difference about the facts, 
they are entitled to vote. Of course, that is not the hiAv and he 
negatived the Avhole thing by the instruction to the election officers. 

Mr. Grigsby. Who would pass on the truth of it. Judge? 

Mr. '^Yickersham. I suppose the election officers Avould haA^e to 
pass on it, but they all admitted they did not pay any attention to 
it after Reagan came there and instructed them, that they just gave 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 161 

up to his judgment; and when the Indians came in and signed 
affidavits, they just gave up their judgment and let it go at that. 
You will find that in the record very fully. But it would not make 
any difference if they did hear evidence, even, and decided wrongly; 
it would not make the vote valid. 

Mr. Grigsby. It would be a question, then, for this committee. 

Mr. WiCKERSHAM. It would be a question, then, for this commit¬ 
tee, as it is now. If a vote is invalid it does not make any difference 
what the election officers did. Of course, they followed a wrong 
instruction. 

There is one thing more; that is, the special election of June 3, 
1919, and I can make a short work of that. I have made my objec¬ 
tions to that election of June 3, 1919, the special election after Sul- 
zer’s death; I have made my objections to that very fully. The 
Territorial legislature has only one power, and that is the power 
to fix the time of holding the special election. The law provides that 
when that is held it shall be held in accordance with the laws of 
Congress for the holding of a general election in every way. 

The Chairman. In what respect, now, do you contend it was not 
held the same as the election in November? 

Mr. WiCKERSHAM. lYell, in almost every way. In the first place, 
there never was any canvass or complication of the vote; at the time 
Mr. Grigsby came here with his certificate, only something like 30 
of the precincts in the Territory had reported. He does not admit 
the exact number but substantially that is his admission in the rec¬ 
ord ; that they had sent in the telegraphic statement from the clerks 
of the courts that precinct so-and-so cast so many votes for him and 
so many votes for Jones, and somebody else got a telegram from 
somebody else and sent it in to the clerk and it became a second, 
third, or fourth hand rumor or statement. And upon that sort of 
statement, they issued a certificate to him. 

Mr. Hudspeth. You contend that although you were not elected 
at the special election that Mr. Grigsby’s election is void? 

Mr. WiCKERSHAM. Absolutely. I w^as not a candidate at the spe¬ 
cial election, because I was satisfied it was a false election. 

Mr. Hudspeth. Your contention is although this committee should 
find you were not elected and Mr. Sulzer was elected, that Mr. 
Grigsbv is now holding his seat by a void election ? 

Mr. 'WicicERSHAM. Yes; I do not think there is any question about 
it. 

Mr. Elliott. That it was illegal in every way? 

Mr. AYickersham. Yes. 

The Chairman. Is that based upon the failure to canvass? 

Mr. WiCKERSHAM. No. 

Mr. Chindblom. That is one objection? 

Mr. WiCKERSHAM. That is one objection. I have tried to make 
this committee understand clearly that law of 1906 and it is re¬ 
enacted by the law of 1912, which provides that the law of 1906 shall 
apply to elections to be held under the act of 1912, and that the 
Territorial legislature has no authority to change that act of 1906 
in any way. 

The Chairman. But they have the right, as I gather trom your 
statement, to call a special election. 

181744—26-11 


162 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. WicKERSHAM. To fix the date only. 

The Chairman. And that was done? 

Mr. WiCKERSHAM. That was done. 

The Chairman. And then the election was held ? 

Mr. WiCKERSHAM. And then the election was held. 

The Chairman. And it was substantially the same kind of an elec¬ 
tion as your general election? 

Mr. WiCKERSHAM. No; it was altogether a different kind of an 
election. 

The Chairman. I want to know Avherein it differed. 

Mr. WiCKERSHAM. It differed in this, that under the act of 1906, 
as amended b}^ the act of 1912, every precinct must be compiled by 
the canvassing board. 

The Chairman. I understand; that was your objection. 

Mr. WiCKERSHAM. That was not done. 

The Chairman. And Avhat else? 

Mr. WiCKERSHAM. Aluiost in every phase of the election. 

The Chairman. Let us haA^e that specifically. 

Mr. WiCKERSHAM. All right, I am glad to do it. I just did not 
want to take up too much of your time. Section 17 of this act of 
1912 proAudes that the date of the election for the Delegate to Con¬ 
gress fixed in the act of May 7, 1906, shall be changed from a certain 
day in August to the Tuesday next after the first Monday in Novem¬ 
ber, so as to make it coincide with the general November elections. It 
then provides: 

* * * that all of the provisions of the aforesaid act (of Maj^ 7, 1906) 
shall continue to be in full force and effect and shall appl.v to the said elec¬ 
tion in eA^ery respect as is now provided for the election to be held in the month 
of August therein : Provided, That the time for an election in said Territory 
for delegate in Alaska to the House of RepresentatiA’es to fill a vacancy, 
whether such A^acancy is caused by failure to elect at the time prescribed by 
laAV or by the death, resignation, or incapacity of a person elected, may be 
prescribed by an act passed by the Legislature of the Territory of Alaska: 
Provided further, That when such election is held it shall be governed in every 
respect by the laws passed by Congress governing such elections. 

So that when thath special election time is fixed by the local legis¬ 
lature, then* it must be held under the laAvs passed by Congress gov¬ 
erning that election, and that is an exclusion of any poAver in the 
local legislature. Now, notice that Mr. Grigsby dreAv an act and had 
the local legislature pass it, proAuding in almost every respect a differ¬ 
ent method for holding that election from that prescribed by United 
States laAv. 

Mr. Hays. You are going to enumerate some of those variations 
from the United States laAv? 

!Mr. WiCKERSHAM. Yes; I am going to enumerate some of them 
noAV. The first section of the Grigsby act is divided into seven para¬ 
graphs, and Ave Avill examine them singly. The first paragraph reads 
as follows: 

Section 1. In case of a A'acaucy caused by death, resignation, incapacity, 
or from any other cause in the office of Delegate from Alaska in the House 
of Representatives the governor of the Territory of Alaska shall cause a spe¬ 
cial election to be held to fill such vacancy and shall issue a Avrit ordering 
such special election, to be held not less than 30 days from the date of the 
Avrit. The gOA^ernor shall, immediately upon the issuance of the Avrit, notify 
the clerk of the United States district court of each division of the Territory 
of the issuance thereof and giving such notice by telegraph where necessary 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 163 


5111(1 the clerk of court of esich division of the Territory sluill iininediately cause 
notice of such writ to he jiiven to the city council of eiich incorporated town 
in his division and to each United Stsites conunissioner therein hy tlie most 
rapid ine5ins of coinmunication, telephone, telegraph, or other. 

I say in iny brief: The first sentence in the foregoing paragraph 
is substantially identical in language with that of the act passed by 
the Alaska Legislature and api)roved by the governor on April 20, 
1915, above (pioted, prescribing the time when a special election may 
be held to fill a vacancy in the office of Delegate to Congress and if 
that portion of the act stood alone, with a proper title, it would be 
valid. The second sentence is in direct conflict with the last clause' 
of section IT of the organic act of August 24, 1912, which provides, 

that when such election is held it shall be governed in every respect 
by the laws passed by Congress governing such election,” etc. In 
other words, any change or any attempted change in this act, under 
which this special election was held, passed by the legislature, which 
changed the laws of Congress, was invalid and void. 

Mr. Chindblom. But what changes were there? 

Mr. IYickersham. Paragraph 2 — there are a lot of changes in that 
paragraph in the matter of giving notice and all that. Those are 
all extra; none of them in the act of Congress. 

Mr. Chindblom. What does the act of Congress say about giving 
notice ? 

Mr. IYickersham. It provides notice shall be given in a certiiin 
way by posting the notice, etc. This provides it may be given by 
telephone, telegraph, and otherwise. 

Mr. Grigsby. That is the notice calling the election by the gov¬ 
ernor. 

Mr. Hudspeth. You contend that act is void? 

Mr. Wickersham. I do. 

Mr. Hudspeth. Then, as I understood you in your former argu¬ 
ment, you contend the act under which the Australian ballot system 
was provided was void? 

Mr. MTckersham. I think most of it is void, because it is in con¬ 
flict with the provisions of the act of Congress. 

Mr. Hudspeth. I am asking you this to get your judgment on it; I 
am not passing my judgment on it. I am asking you if the act under 
which Mr. Grigsby was elected is void, then the act under which 
you and Sulzer contested for this delegateship was void ? 

Mr. IYickersham. Oh, no; not at all. 

Mr. Hudspeth. I do not get you then. 

Mr. Wickersham. Because we were elected under the United 
States statutes. 

Mr. Hudspeth. I misunderstood you; I though you were elected 
under the Australian ballot law. 

Mr. Wickersham. That had nothing to do with the holding of 
the election. The act of Congress only provides the ballot shall 
be substantially in the following form, and they have added to that 
form somewhat and that is the only change. There is no contention 
but what, in certain specific cases, proper notice was given and all 
that kind of thing in the general election—none whatever. The sec¬ 
ond paragraph of the Grigsby bill reads: 

Upon the receipt of siicli notice it shall be the duty of the common council 
of e 5 ich incorporsited town to at once give notice of the election by posting a 


164 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


written or printed notice in three i)uhlic places in each preciind in sai<i town, 
specifying the time, place, and purpose of the election, ami in case there are one 
or more newspapers of general circnlation published in the town, then a copy 
of such notice shall he published at least once in one of such newspapers prior 
to the date of election. 

This is in direct conflict with the last clause of section 17, “that 
when such election is held it shall be governed in every respect by 
the laws passed by Congress governing such election,'’ because it 
entirely changes a lot of the features of that act; and also in conflict 
with provisions of section 4 of the congressional election law of 
Alaska, act of May 7, 1906, because it changes the duty of the com¬ 
mon council, adds new duties, and provides a different mode and 
time of ])ublication of election notices, and is therefore wholly ultra 
vires, null and void. It changes the whole system; changes the man¬ 
ner of notice, the time of notice, etc. The next paragraj)h is: 

The eomiuou couucil of each iueorpoi-ated t(»wii shall also, at the time of 
providing for the giving of notice, ap])oiiit three .judges of election and tw(' 
clerks for each voting i)recinct, all of whom shall be (pialitied voters of the 
l)recinct; and no more than two judges and one olerk shall belong to the same 
l)olitical party, and shall immediately notify said judges and clerks of such 
appointment. 

This paragraph changes the rule of time for appointing election 
officers prescribed by section 4 of the act of May 7, 1906, and is 
therefore ultra vires, null and void. The officers are the same, and 
all that sort of thing, but it changes the rule of time for api^ointing 
them. Then, paragraph 4; 

The United States commissioner in each ivcording district shall, upon receipt 
of said novice from the clerk of the court, at once proceed to give notice of 
tlie election by i)osting \M-itren or printe<l notices tliereof, specifying the time, 
place, and purposo of the election, which notice shall be posted as follows: 
One at the otlice of the commissioner in said recording district and one in 
each of three conspicuous i)ublic places in each of said voting ivrecincts in said 
recording district, one of which shall be the polling place in the precinct. 

This paragrajih changes tlie lime of giving notice of the election 
provided in section 4 of the act of May 7, 1906, which says that it 
shall b-e at least 60 days before the date of election. 

Mr. Ht DSPETH. That is the legislative act? 

Mr. WiCKEirsiiAZM. That is, the legislative act makes an alteration 
so that they can give less than 60 days’ notice, while the congres¬ 
sional act provides there shall be a 60 days’ notice. The next one is: 

The failure of any commissionei’ to post said notice as herein i)rovided on 
account of notice not having been received by him from the clerk of the court 
in time shall not invalidate the election held in any precanct if held at the time 
provided for in the writ issued by the governor of Alaska. 

This paragraph was inserted in this “ trick ” and fraudulent act 
Ity the legislature, because it was known to the contestee that drew 
it that notices could not be given in accordance with sections 4 and 5 
of the act of May 7, 1906, “ at least 60 days before the <late of the 
election.” So that they cut out the 60-day clause provided for by the 
act of Congress and left it so they might give any old notice, of one, 
two, or more days, providing the election was held on tlie projiei* day. 
They changed that law entirely. 

Mr. Hudspeth. You are questioning this act and the validity of 
this election in the capacity of a citizen and not as a contestant? 


WICKERSHAM VS. SULZER (DECEASED) A^^D GRIGSBY. 165 


Mr. Wtckersham. I was not a candidate then at all. I say it is a 
fraudulent act and it is void, because it is in conflict with the constitu¬ 
tion of Alaska, as Mr. (fri^sby calls it and with which I ai>;ree. ddien 
paragraph 6: 

Each I nited Slates coiniiiissioiier sliall also select, notify, and aiHxnnt fronr 
the qnalihed electors in each votin<; pi-ecinct three jndiK's of (dection for said 
precinct, not more than two of whom shall he of the same pcditicaJ pa.rty. 

Ihis paragra])h is also in direct conflict Avith the last clause of 
section IT, that when such election is held it shall be governed in 
every res])ect by the laws ])assed by Congress goA^erning such elec¬ 
tions,” to Avit, the act of May 7, 1906. Section 5 of said act recjuires 
the commissioner to select and appoint such judges of election “ at 
least 30 days prior to the date of holding such electic.u,’' Avhich tliis 
])aragra})h omits purposely, so as to lun^e them ajfpointed at any mo¬ 
ment before the election. The })aragraph for that and other reasons 
is ultra vires, null and void. 

That is true all the way through this bill; eA^ery section in it Avas 
fixed so that they did not have to giA e the 30 days' notice, so that they 
did not liaA’e to diAude the precincts more than 60 days before the 
election. It provides in here for the making of these jirecincls jicrma- 
nent at that election and takes aAvay from the commissioners in the 
precincts the right to divide the districts up into precincts for tliis 
election. In other Avords, it utterly repeals in those most fundamental 
Avays the act of Congress and substitutes another act for it, to Avut, 
the act in (piestion. 

Mr. (trigsby. You say that the act of 1915, Avhich allowed the gov¬ 
ernor to call an election on 30 days’ notice, Avas valid? 

Mr. lY iCKERSHAM. No; I do not say that. 

Mr. Grigsby. You did say it just noAv. 

Mr. AY ICKERSHAM. I say substantialh^ it is; yes. 

Mr. ( trigsby. Xoav, if the election can be called on 30 days’ notice 
by the goA^ernor, hoAv can the commissioner give 60 daj^s' notice of 
it ? 

Mr. AYickersiiaai. It may be that part of it is invalid and Amid; 
luit, generally, it is Avhat Congress provided you might do and you 
must do that, in vieAv of the act of Congress itself Avhich gives the 
commissioners the poAver and makes it their duty, at least 60 days 
before election, to subdivide their districts. Is not that correct? 

Mr. Grigsby. No, sir. 

Mr. AYickersham. You do not think the hnv of Congress })rovides 
it shall be done at least 60 days before the election? 

Mr. Grigsby. The hiAv of Congress permits the legislature abso¬ 
lutely to fix the time of a sjiecial election. 

Ylr. AYi(Uversha:vi. But it must be fixed in vieAv of the clauses of the 
act of Comrress. AY)u knoAV you can not repeal the act of Congress. 

Mr. CrRuisBY. Congress has'repealed that act of Congress. 

Ylr. AYickersham. Oh, no; it has not; not at all. The act of Con¬ 
gress says all you can do is to fix the time, and Avhen the time is fixed 
the election must be held according to the provisions of the act of 
Congress itself. And that they did not do in any Avay. 

Of course, this is not so very'important to me, Mr. Chairman—this 
election is not. But I still think it is a fraudulent election and it is 


166 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


void, because it is substantially a repeal of all the acts of Congress. 
And I am in earnest about it for this reason, Mr. Chairman, that we 
are governed to-day in Alaska by Congress. It is the supreme legis¬ 
lative power and you gentlemen are sitting here testing the rights of 
our people in the elections of the Territory of Alaska and we want 
you to test them according to the law. 

You might say, “ Oh, well, that did not hurt anybody, and we will 
pay no attention to it.” But it will hurt somebod}^ next time, and we 
are respectable people in Alaska and Ave appeal to you to decide this 
case and there is not any other power besides you, and Avhile you may 
say, “ Oh, Avell, you are not particularly interested in that,” I may 
be interested in it the next time and am interested in it noAV as a 
citizen, and I think it ought to be settled and settled right—all these 
questions here. And while this has taken a lot of time, it is very im¬ 
portant to the people of Alaska, and I hope the committee will giA^e 
earnest attention and careful attention to all of these matters, because 
they are important. We havx the Avorst fraudulent situation in the 
elections of Alaska you eA^er saAv and it is getting Avorse all the time; 
and Avithout you stand by and help our people get good elections, 
clean elections, honest elections in Alaska, you had much better aban¬ 
don your GoA’ernment in Alaska and let us govern ourseh-es, and if 
you won't stand by and giA^e us clean elections in Alaska, giA^e us 
authority to do it and aa^c Avill do it. And Ave appeal to you to haA^e 
clean elections in Alaska. 

The difficulty is not Avith the people in Alaska; the difficulty is 
Avith the officers in Alaska, as you can see from an examination of 
rhis record, the clerks, deputy marshals, and all that sort of thing. 
You talk about Michigan; the XeAvberr^ case and all that up there 
is merely a formal violation of the laAv in spending a little more 
mone}^ in the election than the hnv requires or permits to be spent. 
But in Alaska it is so much Avorse that the felloAvs up in Michigan 
are pikers. They resort to eA^ery sort of crime in Alaska, and when 
the men they have u]) there try to tell the truth about it, they Avill 
beat them up and kick them off the Avharves. And it is time for you 
people to say Ave haA^e to get good government in Alaska and to 
secure honest and clean elections. But you gentlemen around this 
table are responsible, and if you Avon’t do you duty, Avhy then you 
may expect a continuation of this system in Alaska until Ave get some 
people who Avill do their duty. IVe people in Alaska Avant to secure 
clean goA^ernment, but Ave Avant some help, and Ave want eA^ery man 
around this table to consider this matter as a clean legal proposition 
and to see if he can not help us. And this fraudulent election of 
June 8 Avas the most impudent thing eA^er pulled off on the people of 
this country. KA^ery single section in that hiAV is invalid and Amid if 
you try it by the standard of the exact phraseology in the election 
law of 1906 and 1912. xVnd Mr. Grigsby kneAv it at the time and he 
knoAvs it noAv. And Ave appeal to this committee for relief from the 
unfortunate situation Avhich preA^ails there. 

Mr. O’Connor. Does anybody but yourself ])rotest against this 
special election at Avhich Mr. Grigsby Avas elected ? 

Mr. WiCKERSHAM. They protested by refusing to go and vote. 

Mr. O’Connor. How many votes were cast at that special election? 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 167 


Mr. WiCKERSHAM. Of course, nobody knoAvs except as it appears 
in the neAvspapers; there is no proof in the record about it at all. 
Mr. Grigsby in his proof says he got how many—2,900 votes? 

Mr. Grigsby. The returns are all here in evidence under the House 
resolution. 

Mr. WiCKERSHAM. Oh, no; not for the special election. 

Mr. Grigsby. Yes. 

Mr. WiCKERSHAM. I never heard of it. 

Mr. Chindbloai. Let me ask this. Judge Wickersham: Do you 
take the position that even though we should find you, as a matter 
of fact, Avere elected in NoA^ember, 1918, Ave should still noAv pass 
upon the validity of the election of June 3, 1919? 

Mr. WiCKERSHAAi. Not at all; that avouIcI be unnecessary. It is 
only in the case you find I Avas not elected and some one else Avas 
and there Avas a Auicancy to be filled that there Avould be any neces¬ 
sity for passing upon this other matter. In his brief, at the last 
page, Mr. Grigsby says: 

Contestee has been elected at the .special election held in compliance both 
with the 1915 act, of which contestant approves— 

Avhich I do not approA^e— 

* * * and with the 1919 act, which he condemns— 

and Avhich I do condemn. 

At that special election 144 out of 164 voting precincts .sent in election re¬ 
turns. The total vote in the missing precincts at the last previous general 
election was about 300. Contestee’s plurality was 1,277. 

I thought you gave the number of Amtes? 

Mr. Grigsby. I did somewhere there. 

Mr. WiCKERSHAAi. Do you remember that? 

Mr. Grigsby. About 4,800, I think. Look in the brief and you 
Avill find it. 

]Mr. WicKERSHAAi. I reccLed, I think, 4,400 and something. 

Ml*. Grigsby. And I received exactly tAvo-thirds of what you did. 

Mr. WiCKERSHAAi. You received tAvo-thirds of Avhat I did. The 
other man receiA^ed, then, a A^ery small vote. So that amounted to a 
little more than 50 per cent of the total vote ? 

Mr. O’Connor. As a matter of fact, is not a smaller vote always 
cast in a special election? 

Mr. WiCKERSHAAi. But there were tAvo candidates running at this 
special election. The truth of it Avas the people in the Territory 
did not have any notice. And Avhen the certificate Avas issued it 
shoAved only 33 of the precincts reported. 

Mr. Hays. What is the total number of precincts? 

Mr. WiCKERSHAAi. One hundred and fifty-nine. 

Mr. Grigsby. One hundred and sixty-four, and 159 made returns. 

Mr. WicKERSHAAi. There is no evidence of it. I do not knoAv 
Avhether they did or not. I assume they did, if you say so. 

Mr. Grigsby. Excuse me. Judge, but the House resolution permits 
the successful candidate in the special election to haA^e those returns 
sent doAvn here before this committee the same as in any other 
election. 

Mr. Wickersham. That is correct. You have had that done? 

Mr. Grigsby. Yes. 


168 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. WicKERSHAM. I did not know that. That is the first time I 
ever heard of that. But the certificate of election was issued to 
(frigsby 14 da 3 ^s after election, when they knew nothing about what 
the returns were going to show, except by guessing at them. 

That is all I have to say at this time, gentlemen. 

(Thereupon the committee adjourned until to-morrow, Thursday, 
Apr. 1, 1920, at 8 o’clock p. m.) 


House of Representatives, 

Committee on Elections No. 3, 

Thursday^ April i, 1920. 

The committee met at 8 o’clock p. m., a quorum was present, Hon. 
Cassius C. Dowell (chairman) presiding. 

The Chairman. Mr. Grigsby, you may proceed with your argu¬ 
ment. 

STATEMENT OF HON. GEORGE B. GRIGSBY, CONTESTEE. 

Mr. Grigsby. Mr. Chairman and gentlemen of the committee, you 
all realize who have tried lawsuits, I suppose, that it is an easier 
proposition to discuss the testimony of Avitnesses whom you ex¬ 
amined personally than to discuss that which you never heard until 
you heard it being argued. Some of you have read this record, most 
of you have read it to a considerable extent, but none of you either 
sat on a jury and heard the testimony put in or acted as attorney in 
the case, and I am in about the same position. I Avas present at the 
examination of a A^ery feAv Avitnesses, and I liaA^e, on account of the 
pressure of other Avork, put off from time to time getting the con¬ 
ception of this testimony that I ought to haA^e, so that I do not want 
you to think that I am as familiar Avith the facts in the case—that is, 
the testimony of the different AAutnesses—as I AA^oiild be if I had tried 
the case. 

Therefore if I make an}^ misstatements, which I do not intend to 
do, I Avant to be corrected either by you gentlemen or by Mr. Wicker- 
sham. I will try not to make any misstatements and to discuss the 
case fairly both as to the laAv and the facts, Avhich I do not think has 
been done so far. 

I think that Mr. Wickersham has been exceedingly liberal in in¬ 
dulging his imagination in this case, both as to the law and the facts, 
and I think that I can demonstrate at least that. 

In his opening, the first session, he gave you an outline of the 
situation of this case, the situation he Avas in which required its com¬ 
mencement, Avliich Avas not correct. 

Mr. Sulzer, as you know—you haA^e been told here many times— 
died on April 15, 1919. On the 16th or 17th a certificate of election 
Avas issued to him, after his death. Mr. AVickersham told you that it 
Avas incumbent on him to file his petition in his original proceedings, 
which he calls a contest betAveen himself and Mr. Sulzer, Avithin 30 
days, and that is the reason that subsequently it Avas necessary for 
him to go up to A'aldez and cause some subpcenas to be issued, because 
time was running against him; that Avhat he had to do had to be done 



WICKEESHAM VS. SULZER (DECEASED) AND GRIGSBY. 169 


in 30 days. That is his explanation for what he did, which, as I shall 
proceed to show, is without any justification whatever. 

^»ow, there is but one way to commence an election contest. 
There is but one provision of law that authorizes it, that is the laws 
of the United States, the Revised Statutes, section 105, which pro¬ 
vides that all election contests for seats in the House of Representa¬ 
tives must be commenced by service upon the sitting member or the 
successful^ candidate within 30 days after the declaration that he is 
idected. That is the only ])rovision there is Now, if he is dead, 
it can not be done. I on can not contest the seat of a man that is 
dead, because he has no seat. Under such circumstances the only 
recourse a man has who claims the seat is to get some authority to 
take testimony, to proceed to establish his right to the seat. If Con¬ 
gress is not in session, he can not get that authority. There is noth¬ 
ing he can do and there is nothing he can fail to do which affects 
his rights. No time is running against him because there is no law 
compelling him to do anything. 

Now, for instance, when Mr. Sulzer died on April 15 or 16, and 
left a vacancy in Congress, Congress was in recess. It would have 
been in recess until the following December if a special session had 
not been called. While they were in recess there was no way on earth 
that Mr. Wickersham could have his right to the seat established. 
There was nothing he could do. No law says he must file anything 
with the clerk. There is no law that says he must file anything 
with the clerk in a contest regularly begun. Nothing is filed with 
the clerk of the House. The law provides that you shall commence 
your contest by serving your opponent with notice. Then he answers 
within 30 days. Then a reply is permitted. And then you take the 
papers to a notary public, and there are subpoenas to be issued and 
depositions to be taken, and after those depositions are taken and 
transcribed the notary public seals them up with coi)ies of the plead¬ 
ings and mails them to the clerk of the House. The clerk of the 
House opens that testimom^, calls the parties together and arranges 
for the printing of it. When it is printed into a record, then the 
time commences for writing the briefs. When the parties are 
‘served with the printed record, then the contestant has 30 days to 
lile a brief an'd the contestee has the succeeding 30 days. The con¬ 
testant has 30 days more to file a reply brief if he wants to, and 
when he has done that or waived it, the clerk takes everything to 
the Speaker of the House, and that is the first time the House knows 
there is any contest. There is no law anywhere that put the burden 
upon the contestant, after Mr. Sulzer died, to file anything any¬ 
where. 

But here was the situation: Everybody knew that there would be 
a special session of Congress. Mr. Wickersham knew it. I knew 
it. And he knew that, presumably, the governor of Alaska would 
sooner or later call a special election to fill that vacancy, and he 
knew we did not have any law under which that election could be 
called and held, as I Avill proceed to show. We had an incomplete 
and defective law, but we did not have a law under which an election 
could be held. He kneAv that an act would be passed by the legis¬ 
lature so that an election could be called. He did not know what 
period of notice we would provide. He did not know that we would 


170 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


pass the law we did, and, of course, he kneAV that if he could get 
down here to Congress soon after it met in special session, with a 
respectable prima facie showing that he was elected on November 5, 
1918, he might be able to be seated and leave the person elected at 
the special election to be the contestant. There would not have been 
anything radically wrong about that, and so he got up this petition, 
and it is sworn to May Jl. It is accompanied by affidavits sworn to 
as early as the 23d of April, eight days after the death of Mr. Sulzer. 

This, of course, was printed down here, but it was dated May 3 
and mailed down here, then printed subsequently, by order or not 
by order of the committee, and it is accompanied by affidavits which 
are very similar to much of the testimony that has afterwards been 
taken in this case, and, of course, it presents a perfect prima facie 
case entitling the gentleman to a seat in Congress. He does not 
petition that Congress adopt a procedure whereby he can establish 
his right to the seat. He petitions Congress to give him the seat on 
the strength of this ex parte showing. That is what he asks. He 
does not do Avhat other contestants haA^e done in similar cases—ask 
to be alloAved to establish his right to the seat—but he asks to be 
seated on this shoAving. He does not mention the fact in this peti¬ 
tion that the special election had been called or Avas about to be called 
in Alaska, but Avhen he got doAvn here Avith this that fact Avas dis¬ 
covered, and Mr. Wickersham did not get the seat on the strength 
of this petition—either Avas prevented or abandoned that idea— 
and resolution 105 Avas introduced, Avhich does contemplate the special 
election, provides for the successor of that candidate at that election 
to come in and defend Mr. Wickersham’s claims, and, susequently, 
you gentlemen amended it, and Ave took the testimony under House 
Kesolution 105, together Avith the procedure set forth in the Revised 
Statutes. 

But I Avant you gentlemen to understand I am not criticizing him 
for it, but the reason for his haste Avas not that any statute Avas run¬ 
ning against him. The reason for his haste Avas that he Avanted to 
get here and get the seat. There is nothing Avrong about that. Here 
is Avhat Avas Avrong: He Avent over to Valdez, and before this petition 
even got to Washington, Avent to a notary i)ublic and caused him to 
issue subpamas to the soldiers and dragged them up there before the 
notary public and sought to ascertain hoAv they had voted at the elec¬ 
tion of November 5, 1918, Avhen he had no authority under the law 
to do any such thing. 

Noav, supposing that you had a case in court, Avhich you Avere per¬ 
haps about to commence, Avhich you had not filed, Avhich you did not 
l^noAv Avhether you Avould commence or not, and it Avas a case Avhere 
you Avanted to take the deposition of the adAWse party. You knoAV 
you can go to a notary public in some jurisdictions and get out sub¬ 
poenas to take depositions and take the deposition of the adA^erse 
party, after you haA^e commenced your hiAv suit. Suppose you did 
that before you commenced your hiAv suit. You Avould be abusing a 
l)rocess of the court. You are guilty of contempt of court. An this 
contestant Avas guilty of contempt of the House of Representatives 
Avhen he Avent up to Valdez and had a notary public issue subpcenas 
ordering soldiers or anybody else to appear. 

Noav, I mention this fact because Avhen these boys Avere informed 
of the fact that this Avas a fake proceeding and a fraud on them and. 


WICKERSHAM VS. SULZER (DECEASED) AND GRICSBY. 171 


bein^ so advised, refused to testify, be seeks in this case to bind me 
by the actions of an attorney who advised them as to what their strict 
le^al rights were at that time. Mr. Wickersham had no more busi¬ 
ness, no more ri^ht, to find how those soldiers voted at that time than 
any of you gentlemen. And no one had a right to find out until he 
had taken the steps authorized by law, which would entitle him to 
proceed to examine them. When it came out up in the newspaper 
that IMr. Wickersham had caused subpmnas to be issued in a pur¬ 
ported contest in proceedings entitled, “ In the House of Representa¬ 
tives of the United States,” when there were, not any such proceed¬ 
ings in the House of Representatives of the Ignited States, those 
peo])le up there naturally were indignant, and the newspapers hav¬ 
ing published the facts, as the record shows, the men appeared and 
obeyed the subpmnas but refused to respond to their names. But I 
should not be i^rejudiced in regard to the merits of this case, no pre¬ 
sumption should be taken against me and no presumption should be 
indulged as to how those boys voted, on account of their standing up 
for their strict legal rights. Every presumption is against Mr. 
lYickersham for having committed an abuse of process, in contempt 
of the House of Representatives, which he did, and there is no 
excuse for it. 

Now, that was the situation. He was not bound or affected by 
the lapse of time. There was no time that he could not have com¬ 
menced a contest, as long as he commenced it within 30 days after 
I Avas declared elected. AYhen I Avas declared elected, on the lltii 
of June, then his 30 days commenced. He had to serA^e me Avithin 
30 days of that time. He had to take notice of that election, but 
prior to that no statute ran against him Avhatever. 

Not only that, but you gentlemen all knoAv that every section of 
the revised statutes relating to contested elections is directory, and 
not mandatory. Congress neAxr had jAOAver to pass a mandatory 
statute Avith reference to a contested election, because each House 
of Congress, by the Constitution of the United States, is the judge 
of the elections, (pialifications, and returns of its oAvn members. Of 
course. Congress can not pass a laAV in contraA^ention of the Con¬ 
stitution. The House can ov^erride the statute in that respect, because 
they are the supreme judge of their oAvn membership at all times. 

Noav, that is the Avay this case came u]). That Avas the situation 
of ^Ir. lYickersham. He has given you gentlemen a learned disserta¬ 
tion on some general legal principles Avhich affect Alaska, about 
Avhich there is no dispute. It amounted substantially to a statement 
that Congress is supreme over Alaska, and the legislature is sub¬ 
servient to Congress, Avhich Ave all recognize. Congress has plenary 
power over the Territory, and can abolish the legislature. That is 
an interesting statement to school children, but everybody knoAvs 
that Congress can abolish the legislature by the same poAver that 
enabled it to create the legislature. It can sell xVlaska, just the 
same as it bought it, or admit it as a State. But I do not see any 
advantage to be gained by his display of any amount of knoAvledge. 
T can not understand his purpose unless, having told you seA^eral 
things that Avere true as to the laAv, he hoped that you Avould take 
his opinion as to the hiAv Avhen he Avas Avrong. 

Noav, I can not find out at all times just Avhat he thinks about 
the laAV, because Avhen T ask him to giA^e me an expression of his 


172 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Adews of the meaning of a statute he acts as if I was trying to 
get him into a trap. Here is the law that he Avrote himself, AAdiich 
gaA^e Alaska a full territorial form of goA^ernment, the act of August 
21, 1912. If anybody knoAvs Iioaa’ to construe that hiAv, Mr. lYicker- 
sham ought to because he is the author. The other night he Avas 
reading from this section 416 of the compiled hiAA^s of Alaska— 

The lejrislative power of tlie Territory ^hall expend to all rif»litfnl .subjects 
of legislation not inconsi.stent with the Constitution and laws of the Unites! 
States. 


AVhen I asked the judge, as you remember, whether that meant 
the general hiAA^s of the United States or the laAA^s of the United 
States relating to Alaska—and AA^e AATre discussing at that time the 
right of the legislature to amend the election laAA^—-AAmuld he ansAA’er 
me? No. He said he AA^ould reserA^e his opinion on that. He AA^as 
not AAulling that you gentlemen AAmuld liaA^e his opinion on that 
unless he kneAA^ Iioaa^ it Avould serve his oAvn purposes. 

Noav, there is but one answer to that question. I Avas Avilling to 
giAT my opinion on it, am noAv, and on any other question of law. 
I expect to be bound by the laAv and expect you gentlemen to ascer¬ 
tain Avhat it is. If I am Avrong in my opinion I think the sooner 
Ave find that out the better. Noav, that means the legislative poAver 
of the Territory shall extend to all rightful subjects of legislation 
not inconsistent Avith the Constitution and laAvs—that means the 
general laAvs of the United States. Mr. IVickersham knoAvs that. It 
can not mean anything else. 

The Chairman. Just one question there. AYoiild that also apply, 
Avith your definition of it, not only to the general laws of the United 
States, but the hiAvs of the United States as applied to Alaska ? 

Mr. Grkjsby. No, sir; not as applied only to Alaska. 

The Chairaian. I do not mean that, but Avould your interpreta¬ 
tion of the statute, if it applied to the general laAvs of the United 
States, Avith that broad construction, would that include the laAVS of 
the United States applying to the Territor}^ of Alaska? 

Mr. CxRiosRY. It Avould include all the general laAvs of the United 
States Avhich apply to Alaska as Avell as the United States, but not 
the hiAvs relating to Alaska alone. Here is the reason for it. Sec¬ 
tion 410, “ That the Constitution of the United States and all the 
laAvs thereof, Avhich are not locally inapplicable, shall haA^e the same 
force and effect Avithin said Territory as elseAvhere in the United 
States.” This means in effect that unless they are locally inap¬ 
plicable. They nevTr AA^ere in effect in Alaska AAdien locally inap¬ 
plicable. [Reading:] 


That all tlie laws of the United States heretofore passed, estahlishinp; the 
executive and judicial departments of Alaska, shall continue in full force and 
effect until amended or repealed by act of Congress. 


Those are the laAvs establishing the usual executive and judicial 
departments and creating the branches of the GoA^ernment of the 
Territories. 


Mr. Hudspeth. Let me get your idea, if it does not bother you 
to ask questions. 

Mr. Grigsby. Not at all. 


Mr. Hudspeth. lYhat is your judgment as to Avhether or not a 
special Ltav passed by Congress applying to Alaska, a State statute 
or Territorial statute, could be passed in contravention thereof? 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 173 


Mr. ( trigsby. Certainly. 

Mr. Hudspeth. It can ? 

i\Ir. Grigsby. Congress. 

^Ir. Hudspeth. Suppose Congress passed a special act and the 
territorial legislature passed a law in contravention of that? 

Mr. Grigsby. They can not do it. No, but they can pass acts in 
contravention of all laws passed prior to the date of this enabling 
act, as I shall show in a minute. [Reading:] 

All of the laws of the United States heretofore passed establishing the execu¬ 
tive and .Indicial departments of the Government shall continue in full force 
and effect until amended or repealeil h.v an act of Congress. 

So we can not interfere with the judiciary, the governor, or the 
surveyor general. [Reading:] 

That except as herein provided, all laws now in force in Alaska shall continue 
in full force and effect until altered, amended, or repealed by Congress or by 
the legislature. 

Now, that is perfectly plain. So we have the power- 

The Chairman. What are you reading from, the organic act? 

Mr. Grigsby. The organic act. So the legislature has the power 
to amend all the laws now in force, that is on the date of the passage 
of this act, by Congress, except those where limitation is contained 
in this act. Now, then, follows the limitation. [Reading:] 

Provided, That the authority herein granted to the legislature to alter, amend, 
modify, and repeal laws in force in Alaska shall not extend to the customs, 
internal revenue, postal, or other general laws of the United States; or to the 
game, fish, and fur-seal laws, and laws relating to fur-bearing animals of the 
United States applicable to Alaska ; or to the laws of the United States provid¬ 
ing for taxes on business and trade; or to an act entitled “An act to provide 
for the construction and maintenance of roads.” * * * 

There are certain specific laws that Ave can not amend. We can not 
amend the general laAvs of the United States, although they may 
apply to Alaska. But we can amend all the other laws of Congress. 
For instance, our civil code, which is very complete, the code of civil 
procedure, and the criminal code, the code of criminal procedure, 
and other special laws passed for Alaska which we are not prohibited 
from amending. So in section 416 of this act—I do not know what 
section it is there—it says the legislative power of the Territory 
shall extend to all rightful subjects of legislation not inconsistent 
with the Constitution and laws of the United States, and that means 
the general laws of the United States, because Ave can pass laAvs in¬ 
consistent Avith the laAVS relating to Alaska. 

The Chairman. Just read that again. 

Mr. Grigsby (reading) : 

' That except as herein provided all laws now in force in Alaska shall continue 
in full force and effect until altered, amended, or repealed by Congress or by 
the legislature. 

That is the language. 

The Chairman. Now, is it your contention that that gives the leg¬ 
islature the right to amend or change a law that Avould conflict Avith 
the hiAvs of the United States that applied specifically to Alaska? 

Mr. Grigsby. Yes; it gives the legislature authority to amend any 
hiAV of the United States that applies to the Territory of Alaska, pro¬ 
vided that it is not Avithin any of the limitations or Avithin the organic 
.act itself. 



174 WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


The Chairman. Then why should Congress pass a law relative to 
the Territory of Alaska if the Territory of Alaska by its legislature 
could immediately repeal it? 

Mr. Grigsby. I do not say subsequent hiAvs, but “ laws now in 
effect.'’ It says except ‘‘ as herein provided laws now in force in 
Alaska.” They are given authority to amend, alter, or repeal those 
in force at the time of the passage of this act. Now, of course. Con¬ 
gress might to-morrow take away the power to do that, or it might 
pass an act to-morrow and say, “ Hereafter no divorces shall be 
granted in the Territory of Alaska unless the plaintiff has resided 
there for six years.” We could not amend that. This act was designed 
to enable the legislature to amend and repeal the existing laws, which 
were a great conglomeration of laws, an obscure set of laws, and 
jirobably Congress thought it would relieve them of the bother of that. 
We have a code handed doAvn patterned after the Oregon laws. For a 
time the Oregon laws were in force in Alaska. Finally we had a set 
of laws, and they were finally all codified in this compilation of 1913. 
The act of August 24, 1912, gives us the territorial legislature—and 
this very act authorized this compilation of 1913. 

Now, everything in this compilation can be amended. The legisla¬ 
ture is not expressly forbidden from amending or repealing. But 
anything subsequently passed they are not given the power to amend. 
It would be absolutely absurd for Congress to pass an act to-morrow, 
and we just call a special session of the legislature repealing it, with the 
proposition staring us in the face that Congress has plenary power. 
But we do have the power to do exactly what it says we can, and there 
is no other construction possible. “ Except as herein provided, all 
laws now in force in Alaska shall continue in full force and effect 
until altered, amended, or repealed by Congress or by the legislature.” 
And then it says, “ The authority herein granted to the legislature to 
alter, amend, modify, and repeal laws in force in Alaska shall not ex¬ 
tend to the customs, internal revenue, postal, or other general laws,” 
etc. So, of course, it gives us the power. 

Mr. Hudspeth. At that time you had laws which had been passed 
by the territorial legislature ? 

Mr. Grigsby. No; we did not have any legislature at that time. 
This is the act creating the legislature. 

Mr. Hudspeth. Then, what authority of law did you have there at 
that time? 

Mr. Grigsby. Congress, that is all. 

Mr. Hudspeth. All the laws passed prior to the organic law were 
passed by Congress? 

Mr. Grigsby. Yes; Congress was the legislature of Alaska. When 
they legislated for xVlaska alone they were sitting as a legislature for 
Alaska. 

The Chairman. Did you have any other form of laws except enact¬ 
ment of Congress? 

Mr. Grigsby. No; we had no legislative body. We had municipal 
law, city ordinances. 

The Chairman. Did you follow the law the Territory was under 
at the time it was admitted, had that been followed for any time I 
mean after it had been purchased by the United States? 

Mr. Grigsby. What particularly do you refer to? 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 175 

The Chairman. I was not referring to any particular one, but was 
there any common law? 

Mr. Grigsby. The common law was in force in the Territory of 
Alaska and all the laws of the United States relating to customs, com¬ 
merce, and navigation were extended by statute, by Congress, to 
Alaska. 

The Chairman. At the time of its purchase? 

Mr. Grigsby. Some time after that. 1868,1 think it was. 

^Ir. CiiiNDBLOM. Were there any remnants of the Russian law in 
force ? 

Mr. Grigsby. Xo. There was not any law of God or man north of 
Fifty-three for a long time. That is an old saying, and then Con¬ 
gress extended the laws of the Ignited States to Alaska. They had 
put us under the Oregon laws in 1884 and gave us a code in 1899, 
criminal code, and in 1900 a civil code and in 1912 a legislature. 

Mr. Chindblom. IVhen was Alaska created a Territory? 

Mr. Grigsby. 1884. 

Mr. Chindblom. Prior to that time- 

Mr. Grigsby. It was an unorganized Territory. 

Mr. Chindblom (continuing).. It was a territory belonging to the 
United States, but was not in the technical sense, or the legal sense, 
or the governmental sense, a Territory? 

Mr. Grigsby. No : it was just a possession, as I understand it. That 
was prior to the gold discoveries, and that was prior to any very ex¬ 
tensive fishing, although for commercial purposes that had been going 
on to some extent for some time. 

Mr. Chindblom. Do you happen to know what was the first action 
of Congress relating to the establishment or the recognition of any 
law in the possession known as Alaska ? 

Mr. Grigsby. Probably 1868. 

Mr. Chindblom. IVhat I was getting at is this: This section 3 
of the act creating the legislative assembly of the Territory of 
Alaska refers to laws now in force in Alaska. You have read that 
provision that ‘‘ Except as herein provided the laws now in force 
in Alaska shall continue in full force and effect until altered, 
amended, or repealed by Congress or by the legislature.” 

Then there is a proviso making exceptions to that power. 

Mr. Grigsby. Yes. 

Mr. Chindblom. Now, the laws “ now in force,” as recited in that 
section, must have come through acts of Congress prior to this? 

Mr. Grigsby. Prior to 1912. 

Mr. Chindblom. The act of 1912? 

Mr. Grigsby. Certainly. 

Mr. Chindblom. I think you said that the laws of Oregon were 
extended; the laws of the Terirtory of Oregon ? 

Mr. Grigsby. They were extended to xVlaska, and we were acting 
under the laws of Oregon for some time. 

Mr. Chindblom. By act of Congress? 

Mr. Grigsby. By act of Congress. And then in 1900 we got a 
civil code, and in 1899 a criminal code. Prior to that time we were 
under the laws of Oregon. 

Mr. WicKERSHAM. By act of 1884. 


176 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. Grigsby. By act of 1884. I could not tell you the date of 
the act extending the laws of the United States to Alaska, but it 
was a long time ago. What I am getting at is this, that if there is 
any reason why the legislature of Alaska can not amend the election 
law passed by Congress it is because it happens to be continued in 
force in this organic act. 

Now, what was the law relating to Alaska passed in 1906 which 
prescribed the qualifications of electors in Alaska, and there is no 
express prohibition on the legislature from amending that. That 
law is the subject of legislation passed in 1906. It is not one of 
the laws the legislature is expressly forbidden to amend, and an 
amendment thereof would not be inconsistent with the general laws 
of the United States because it relates to x41aska alone. 

Now, I do not want to be juit in the attitude of switching my posi¬ 
tion. I did advise the governor that the legislature was without 
power to change the qualifications of voters in Alaska, because of this 
organic act, which continues the act of 1906 in full force and effect. 
That was the reason for it, as Judge Wickersham explained, and this 
is what I am going to call your attention to now. Here is an act in 
1906 relating to elections. In 1912 Congress creates a legislature and 
says that the legislative power shall extend to all rightful subjects of 
legislation not inconsistent Avith the Constitution and laws of the 
United States, meaning the general laAvs of the Ignited States. And 
in another section it says that the “ laws noAV in force in Alaska ” may 
be repealed by the legislature except certain laws mentioned. That 
election law Avas one of the laAvs in force. In fixing the date of the 
election for members of the legislature. Congress said the “ qualifica¬ 
tions of election officers, the supervision of elections, the giAung of 
notices thereof, the forms of ballots, the register of Amtes, the chal¬ 
lenging of Amters, and the returns and the canA^ass of the returns of 
the result of such election for members of the legislature shall be the 
same as those prescribed in the act of Congress entitled ‘An act pro¬ 
viding for the election of the delegates of the House of Representa- 
tiA^es from the Territory of Alaska,’ approved May 7, 1906.” 

They had to fix some method of conducting the first election, and 
satliey just said it shall be just the same laAv as you haA^e been elect¬ 
ing a Delegate under, and the election Avas fixed for the first Tuesday 
after the first Monday of November. So it evidently occurred to Mr. 
Wickersham that there Avas no use of having tAvo elections a year in 
Alaska, so he runs in another section here—section 424—I do not 
knoAv Avhat section it is there- 

Mr. Wickersham. Section 17. 

Mr. Grigsby (reading) : 

That after the .vear 1912 the election for Delegate from the Territory of 
Alaska, provided by “An act providing for the election of a Delegate to the 
House of Representatives from the Territory of Alaska,” approved May 7, 
1906, shall he held on the Tuesday next after the first IMonday in November 
in the year 1914, and every second year thereafter on the said' Tuesday next 
after the first IMonday of November— 

instead of August. That is the only change. [Reading:) 

And all of the provisions of the aforesaid act shall continue to be in full force 
and effect and shall aj^jly to the said election in every respect as is now i)ro 
Added for the election tO' he held in the month of August therein. 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 177 

Noav, did that mean forever ? There is something that is no part 
of or related to the orpinic act which created the legislature and de¬ 
fined its poAvers. It is relating to the change of date of the Delegate’s 
election, and as a precautionary measure he added to that clause that 
it should be conducted along the lines theretofore conducted under. 
But here it is put into an act creating a legislature and defining its 
poAA'ers, Avhich by the act extend to all rightful subjects of legislation 
not inconsistent Avith the Constitution and Days of the United States, 
xsow, did he intend that the legislature should neA^er haA^e any poAA^er 
to fix the qualifications of its voters, or did he intend that for the first 
election thereafter they should liaA^e an election law, Avhich Avas the 
same as the one they had before, and thereafter the general provisions 
gOA'erning the Territories should apply? In eA^ery Territory ever 
created the legislature had the poAver to fix the qualifications" of its 
A’oters after the first election, except Alaska, and I certainly think, if 
he had thought there Avas any doubt about that, Mr. IVickersham, in 
draAving up an act in Avhich he Avas attempting to give the people self- 
go A^ernment, Avould luiA^e extended to them the right to fix the quali¬ 
fications of their Amters and to adopt the Australian ballot system if 
necessary. 

Prior to the passage of this act Ave never had but one officer to elect 
in Alaska. That Avas the Delegate; and you could go and Avrite your 
choice on a piece of tanbark or a sea shell, and say, ‘‘ For Delegate to 
Congress, John Doe,” and it Avas a good legal ballot, and this con¬ 
testant contends that, because in changing the date of this election 
he continued in full force and effect the election laws passed in 1906, 
that foreA^er up there in this country, that is “ rampant with fraud,” 
“ infested Avith the crookedest Democratic machine eA^er known to 
history,” Ave shall haA^e the right to Amte on tanbark and sea shell. Do 
you think he intended that ? 

XoAv, I do not knoAv. This is in tlie organic act. It does not belong 
in the organic act. Supposing that on the same day in a separate act 
they had changed the date of the Delegate elections and said, “ The 
laAvs heretofore passed coA^ering the conduct of Delegate elections 
shall continue in force,” and then the poAA^er is giA'en the Territory 
in the organic act OA^er all rightful subjects of legislation, and they 
undertook to legislate on their oAvn elections for their oAvn members 
of the legislature, Avould you say that they did not liaA^e the poAver? 
Noav, the only objection to their doing it is because the election law is 
continued in force in the organic act, Avhich I haA^e called the consti¬ 
tution of Alaska. That is not entitled the constitution of x\laska, 
but it is an act AAdiich creates a legislature and defines their poAvers 
and is a kind of limited constitution of Alaska, a kind of enabling act. 

Mr. Hudspeth. Let us see if I get you correct. You state it is a 
fact that in all laAvs passed by Congress creating the organic act for 
a Territory that it gives the poAver to the Territorial legislature to 
fix the qualifications of electors and the manner of holding elections? 

Mr. Grigsby. Yes; except Alaska. With certain limitations as to 
qualifications of voters, such as that they must be citizens of the 
United States, but, generally speaking, they are given the power. 

Mr. Chtndblom. In a number of these other Territories Congress 
gave the right of suffrage to declarants, as I recall it. 

181744—20-12 


178 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. (trigsby. At the first election. That is section 1859, Revised 
Statutes, I think. | Reading:] 

Every male citizen al)()ve the a.ue of 21, inclndinj^ ])er.son.s who have lej^ally 
declared their intention to l)ecome citizens in jiny Territory hereafter organized, 
and who are actual residents of siicli Territory at the time of the organization 
thereof, sliall l)e entitled to vote at the tirst election in such Territory and to 
hold any office therein; subject, nevertheless, to the limitations specified in 
the next section. 

Section 1860. [Reading:] 

At all sul)sequent elections, however, in any Territory (U-gaiiized hy Con¬ 
gress, as well as at all elections in Territories already organized, the qualifi¬ 
cations of voters and of holding office shall he such as may he prescribed by 
the legislative assembly of each Territory ; subject, nevertheless, to the follow¬ 
ing restrictions on the power of the legislative assembly, namely: 

First. The i-ight of suffrage and of holding office shall he exercised only hy 
citizens of the Fnited States above the age of 21 years, and hy those above that 
age who have declared on oath, before a competent court of record, their in¬ 
tention to become such, and have taken an oath to support the Constitution 
and Government of the United States. 

Second. There .shall he no deidal of the elective franchise or of holding office 
to a citizen on account of race, color, or previous condition of .servitude. 

I do not mean to bring this in in this connection. [Reading:] 

Third. No officer, soldier, seaman, mariner, or other person in the Army or 
Navy, or attached to ti’oops in the service of the United States, shall he allowed 
to vote in any Territory, hy reason of being on sevice therein, unless such 
Territory is, and has been for the period of six months, his permanent domicile. 

Noav, I will argue that point later, but Alaska is the only Territory 
ever known organized to the original assembly of which was not 
extended the right of changing the qualifications or of establishing 
the qualifications of voters, subject to those ver}^ reasonable limita¬ 
tions; so that if they can not do it, it is because a section of the 
organic act, which is foreign to the subject matter of the organic act, 
incidentally prevents them from doing it, and that is a question that 
I just submit to the committee for its consideration, because if it 
were decided that it was not the intention of Congress to hold us 
forever to that inadequate election law—then the Territorial elec¬ 
tion law would be good. Tender the congressional law there is no 
secrecy of the ballot; you can take a ballot in your hand and hold 
it up in the air to show anyone interested how you are voting and 
put it in the box—it is the oldest style of election or ballot there ever 
was. I can remember when I was a very young boy back in South 
Dakota after the State was organized they had three elections for 
the Capitol, two elections for temporary capitol, and one for perma¬ 
nent capitol, and I have seen money stacked up on the butcher-shop 
counter, silver dollars, and I have seen men file in there and the 
money given to them and ballots, and they marched back up to the 
imlls this Avay [indicating] with the ballots held in the air. And 
every candidate had his bank roll there. 

Under the election law which contestant provided for the “ crooked 
bunch” of politicians that he says are hounding him to death up 
there, they can do that forever unless Congress changes the law, or 
the legislature changes it, and the legislature did it. Did it have a 
right to do it? If it had a right to do it then you can not throw 
those votes out because they are cast in the wrong precinct, because 
of the change in qualifications of electors to meet the public neces- 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 179 


sity fixing it so that a man could vote in any division or any place 
in the division, which was the division of his residence, and the 
reason for that was this- 

Mr. Hudspeth. That is under the Territorial act? 

Mr. Grigsby. That is under the Territorial act. The reason for 
that is this: All Alaska has a more or less transitory population. 
The miners are engaged in two kinds of mining in a great portion 
of the Territory, summer mining and winter mining. Some of the 
mining done in summer is the same as is done in winter, but some is 
surface mining and some underground mining, and they will leave 
one part of the district they are in to go to another ])art in the 
spring and fall of the year, and they are at those times of year more 
or less in transit all over the country. 

The reason for the legislature passing that act was because so 
many people were disfranchised for the reason that they had to be 
in their home precinct on the day of election. They ought not to 
be required to be there. The reason you have that precinct law in 
the States is because you have so many precincts that are close to¬ 
gether and you have such perfect transportation facilities that a 
man could get a train and repeat for dozens of times. But there are 
only two or three places in Alaska that I recall that a man can re¬ 
peat. It is little likely to be done and that is the reason that this 
;k)-day precinct residence is unnecessary. That is why the legis¬ 
lature changed it. That is the way it should be. That is the way 
the people want it, and if they can not have it that way, it is un¬ 
fortunate. The })ower should be extended to them to fix the qualifi¬ 
cations of their voters up there if they are fit for self-government 
at all. 

Mr. Ill DSPETH. You say that the Territorial law gives them the 
right to vote in any precinct in that district ? 

Mr. Grigsby. Division. 

Mr. Hudspeth. The division is the district? 

Mr. Grigsby. It is a judicial division. There are four judicial 
divisions. 

Mr. Hudspeth. Are they what we call districts in this country? 

Mr. Grigsby. Tliere is nothing exactly similar up there. They 
are not political entities at all. 

Mr. Hudspeth. In our State all men can vote for a district office 
in any i)art of the district. He can not vote for a county office ex¬ 
cept in his own precinct where he lives, but he can vote for a district 
office in any precinct in the district where he happens to be, or for 
a State office in any part of the district, or for a Federal office. 
That is my recollection of the law down there unless it has been 
changed. 

Mr. Chindblom. Give an instance of a district officer in your State. 

Mr. Hudspeth. Well, for instance, take a district judge, as we 
call him. His district may be composed of five counties, and my 
recollection of the law is, unless it has been changed, that a man 
can vote in anv one of those counties for a district judge that he 
happens to be ’in. Then we have got down there an absent voting 
law. For instance, if you are a drummer and you live in the eastern 
jiart of my congressional district, which is only 600 miles from the 
western end, you can vote in the western end. Now, you can leave 



180 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

your ballot at your home 10 days before election. So on that per¬ 
haps this mi^ht be stated that you could vote there for a district 
office in any part of the district. 

Mr. Grigsby. Under the Congressional law in Alaska there was but 
one office to be voted for when it was passed, and that was delegate 
to Congress for the whole territory of Alaska. 

Mr. Hudspeth. What was the size of those divisions approxi¬ 
mately? 

Mr, Grigsby. There are four of those divisions in Alaska. Alaska 
contains approximately 600,000 square miles. 

Mr. Hudspeth. Under that Territorial law, if a man lived in 
Division No. 1, he could vote in any precinct in Division No. 1 on 
the day of election? 

Mr. Grigsby. Yes; if he had been there 30 days. 

Mr, Hudspeth. Where? 

Mr. Grigsby. In the division. 

Mr. Hudspeth. In the division? 

Mr. Grigsby. Yes. Under the Congressional law he had to be in 
the precinct 30 days. 

Now, there are four divisions up there, with a Federal judge in 
each division, and he appoints the United States commissioners 
wherever necessary, wherever he wants to establish a recording dis¬ 
trict, on account of the necessities of the case. There are no counties. 
He defines the boundaries of the recording districts. The Ignited 
States commissioner is ex officio recorder of the district, and he 
divides his recording district into voting precincts at election time 
and appoints election judges, not more than two of whom shall be 
of the same political party. But it Avould be better for the people 
of Alaska, for the exercise of the right of suffrage, if a man could 
vote anywhere in his own division, if he had been there 30 days. 

Mr. Hudspeth. If he had been in the division 30 days and in 
Alaska for a year? 

Mr. Grigsby. In Alaska a year. In 1916 eA^erybody kneAv about 
this neAv law Avhich was passed in 1915, and there Avas no question 
raised as to the right to vote anywhere in the division. 

Mr. Hudspeth. In the contest of 1916 between Judge Wickersham 
and Mr. Sulzer, Avas any such question as that raised ? 

Mr. Grigsby. There was not. 

Mr. Hudspeth. Was there any such Amting as that? 

Mr. Grisgby. Yes; in fact the Territorial Ltav Avas recognized uni- 
A^ersally, and because there Avas no (piestion raised about it, it Avas 
recognized. Now I Avill show you Avhy. 

Mr. Hudspeth. What I meant to ask- 

Mr. Grigsby. The territorial laAv was uniA^ersally folloAved. That 
is in the record, SAvorn to by myself substantially as folloAvs 
[reading] : 

I AA\ns at Nome, Alaska, on election day. Navliration closes at Nome about the 
1st of NoA^ember, but that year a storm came and detained the A’essels in the 
open harbor for two Aveeks, and for two AA^eeks they could not take the passengers 
out, so that everybody Avas tied up in toAvn. At that time of the year many 
people go out to the States. From the small tOAAUis they come doAAm to Nome 
to get the boats. All Avere there, and they all Avalked up to the polls and A^ery 
largely voted for Judge Wickersham. 

Mr. Hudspeth. Was the question raised in that contest ? 



WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 181 


Mr. Grigsby. It was not. I want to show that. I want to say 
this, however, that the present Republican candidate for delegate 
to Congress, Mr. Dan Sutherland, a friend of Judge Wickersham, 
got into our division on the thirtieth day before election at Marshall 
City and was down in Nome on election day and voted under the 
territorial laAv. Nobody raised any question about it at all. I will 
show what happened with reference to that in the last contest from 
the opinion of the committee as contained in this Wickersham v. 
Sulzer contest proceeding. Now, here is what the committee says 
in their opinion [reading] : 

While not connected with this or the other main features of the case are the 
votes of Louis Klopsch, who was not a resident of the precinct in which he 
voted, and Julius Forsman, of foreign birth, unnaturalized, both of whom, ac¬ 
cording to direct and undisputed testimony, voted for Wickersham. These voters 
should not have been received or counted, and are accordingly deducted from 
contestant’s vote. 

That is in the printed record, page 240 and 261. 

Now we turn to pa^ge 240 of the printed record. 

Mr. Hudspeth. From what are you reading? 

Mr. Griggsby. From the opinion of the committee in the last con¬ 
test. 

Mr. Hudspeth. 1916. 

Mr. Grigsby. Yes. The vote of Louis Klopsch was thrown out 
because he did not vote in the precinct in which he lived, according 
to the committee. Now, here is what the testimony was [reading] : 

Q. Do you know whether Louis Kloi)sch, who voted for James Wickersham, 
as delegate to Congress, at the Sour Dougli precinct at the election held there 
on the 7th day of November, 1916, was a resident of the third division of the 
territory of Alaska for 30 days next preceding the date on which he voted?—A. 
He was not. 

Now, the committee on elections, you see, treats division as syn¬ 
onymous with precinct, but the question, I will frankly say, was 
not raised. The proofs show he did not reside in the division 30 
days. The committee throws the vote out because, as they say, the 
evidence does not show he resided in the precinct. You see that 
the territorial law was recognized by the examiners, by the wit¬ 
nesses and by the committee. I do not claim that that is an opinion 
that is binding, but that is the only way that the territorial law 
entered into that case with regard to 30-day residence, the only way 
that I know of. That point came in in no other way unless it was 
discussed in Judge Wickersham’s brief. 

Mr. Wickersham. Very fully. 

Mr. Grigsby. It may have been. That was the only way it entered 
into the case. But that would not justify us in saying that that 
point was in issue in 1916, because that was the extent to which 
that was in issue. The only reason that perhaps the legislature can 
not change the qualifications of electors is because that provision 
continuing the act of 1906 in force happens to be in the organic 
act, and the other question relating to the scope of the act with 
reference to its title. I have not examined the authorities with ref¬ 
erence to that particular subject on that question. There is great 
variety of precedent in the courts when you attempt to decide 
whether a title of an act is broad enough to include every subject 
in the body of the act. Here is an act to provide official ballots 


182 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


for the Territory of Alaska, and then follows a general election 
law. It may be that that will be fatal in that connection. 

Mr. Chindrlom. Where is the provision in the organic law with 
reference to the qualifications of electors? You have referred to it 
before, but I just want to find it. 

Mr. (trigsby. You mean the act of 1906? 

Mr. Chtndblom. 1912. 

Mr. WiCKERSHAM. Sections 5 and 17. You mean extending the 
qualifications of voters with reference to members of the legislature? 

Mr. Chindblom. Both. I see it here, with reference to members 
of the legislature it is in section 5, and the other is section 17. 

Mr. Grigsby. You have got the sections of the compiled-statutes, 
but the paragraphs of the organic act are not there. 

Now, there are those considerations with regard to this territorial 
law for you gentlemen to consider, and I want you, in considering 
them, to remember all the time that the attorney general of Alaska 
is on record against all the suggestions I am bringing to your atten¬ 
tion now. As Judge Wickersham says: In my opinion I have stated 
in advices to the governor, and in directions to the election officers, 
that we could not change the qualifications of voters. But, gentle¬ 
men, it would be a great pleasure to me to be overruled. I will not 
complain at all. I won’t feel humiliated about it. If I was wrong, 
I want to find out in this case, and incidentally save a few votes, 
perhaps. I do not know that the change will be very much on ac¬ 
count of that particular question. 

Now, there is also this to be said: Judge Wickersham, in the election 
of 1916, conformed to that Territorial act in every respect. Under 
the Territorial act, before he could get his name on the official ballot 
he had to go and get a petition signed and file it on or before a certain 
date. He was the present seated Delegate to Congress at that time. 
If that election law was wrong, he ought to have told the legislature 
so. He said the other day that Dan A. Driscoll introduced the bill. 
Dan Avas one of his most ardent supporters, and I understand that 
the judge guided that legislation during that session to some extent, 
and had a considerable influence over it. But they attempted to pass 
a neAv election hnv, and they passed it, and the election of 1916 was 
conducted under it. This organic act provides, section 26, which is 
the last section [reading] : 

That all laws passed by the Legislature of the Territory of Alaska shall be 
submitted to the (’oujjress by the President of the United States, and if disap¬ 
proved by Uongress they shall be null and of no effect. 

If the judge kneAv that the Legislature of Alaska had exceeded its 
poAvers in passing an election laAv that Avas A^oid, why did he not haA^'e 
it disapproATd? He Avas sitting here in Congress on the day it was 
passed in 1915, and he goes and runs under that hiAv in 1916 and says 
nothing about it, receives hundreds of votes under that law, would 
not haAT been elected except for that laAV, according to the undisputed 
evidence in this case, comes doAvn to Congress in 1916 and does not 
say anything about it, and comes doAvn here in 1917 and sits until the 
4th of March, 1917, and does not do anything to call to the attention 
of Congress that it has passed a A^oid act, and during all of this time 
the people of Alaska Avere acquiescing in this act, and I believe under 
the circumstances that Congress ought to approve it by the action 


WICKERSHAM VS. SU'LZER (DECEASED) AND GRIGSBY. 183 


of this coniinittee, subseciiieiitly concurred in by the House, because 
there is such a tiling as custom ripening into law after long acqui- 
esen^, particularly in the case of the judge. Here is a man who has 
benefited by it, whose duty it was to have had it disapproved, but 
who sat idly by and did not open his head until this time, and who 
ran again in 1918 under it, sat in Congress up until March 4, 1919, 
and never got it disapproved. Now, it has been in effect since 1915. 
We have had two elections under it. 

The only man who ever disapproved it was myself, when I was 
called on for advice. When the legislature passed an act in 1917 the 
senator from the fourth division, Mr. Dan Sutherland, who is now a 
candidate for Delegate to Congress on the Republican ticket, intro¬ 
duced a bill and made it my duty as attorney general to prepare the 
election forms for all elections—general elections and primary elec¬ 
tions. He had two motives in doing that. He wanted to have the 
forms right and he wanted to put upon me some work, and his action 
showed that he trusted me, and nobody up to this time has found 
any fault with any form I prepared under the law of 1915. This 
Territorial act, section 22, necessitates one of the forms I had to get 
up. This duty was taken away from the clerk of the court and put 
on me. [Reacling:] 

The clerk of the court shall provide each polling place with a book to be 
known as the registration hook, on the first page of which shall be printed the 
qualifications of the voter, as follows: “Any person of the age of 21 years or 
more who is a citizen of the United States who has lived in the Territory of 
Alaska one year and in the judicial division in whch he or she offers to cast his 
or her vote 30 days immediately preceding such election shall be entitled to vote 
at all elections held therein.’’ etc. 

There is the Territorial statute, and I am the attorney general, an 
officer created by the legislature, and the law says that I have to pre¬ 
pare that form, and I did it, but I put under that on the same page a 
note calling attention to the fact that that was in conflict with the 
congressional law and advising that the congressional law ought to be 
complied Avith. I did not want to father at that time that kind of 
direction, because I did not think it Avas right. I did not Avant to 
refuse to comply with the directions of the statute, so I put the note 
on calling attention to aa hat I thought Avas the laAv. 

Mr. O’Connor. Did the election of Delegate fall Avithin the provi¬ 
sions of the congressional act or the act of the Territorial legislature? 

Mr. Grigsby. That is section IT of the organic act. 

Mr. O’Connor. I thought the prohibition did not include the elec¬ 
tion of a delegate and that therefore the Territory of Alaska had a 
right- 

Mr. Grigsby. The prohibition did not include it. There is no pro¬ 
hibition on the legislature from passing any rightful legislation, or 
legislating on any rightful subject of legislation. 

Mr. O’Connor. Did you know the laAv when you Avrote that opinion 
as you knoAV it noAv ? 

Mr. Grigsby. I do not knoAv aa hether I did or not. 

Mr. O’Connor. If the legislature had the poAver to amend and 
alter, I do not see anything that preA^ented it. I did not understand 
your opinion. 

Mr. Grigsby. I .am in a position Avhere it is difficult to explain 
myself, Mr. O’Connor. My printed opinions are thrust on me, and 



184 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

I certain construed the law as I understood it, and I do not know 
but what I was ri^ht. But when I heard the discussion of the sub¬ 
ject by Judge Wickersham the other night, it suggested those ideas 
to my mind which I have presented to you and I do not think you 
are bound by my opinion, and as I said before I would be delighted 
to be put right if I am wrong. 

Mr. Chindblom. You are in good company. I have known supreme 
courts to change their minds. I might change my mind if I was a 
judicial tribunal which was disposing of this case. 

Mr. Grigsby. I might do so myself. 

Mr. Chtndbbom. I do not mean to say anything with reference to 
this case, but we know supreme courts do change their minds. 

Mr. O’Connor. The West Publishing Co. have a note: “ Do not 
follow the decisions of the Louisiana Supreme Court. They judge 
every case upon its own peculiar tone and color.” 

The Chairman. We are taking up the gentleman’s time a good 
deal. I have no objection to its going on, but we do not want him 
bothered. 

Mr. Grigsby. You gentlemen, of course, realize that you are called 
on for opinions when you do not have the benefits of anybody else’s 
vieAvs, and you have but little time to give a decision. I may have 
been wrong in that ojjinion, but I gave an opinion as near right as I 
could. It was my desire that the laAv be complied with whatever it 
was. I thoimht at that time that a man must vote in his own pre¬ 
cinct. Now, I have said everything that I care to say on the subject, 
because those considerations did not occur to me at that time Avhich 
I mentioned to you gentlemen to-night. That is all I care to say on 
that question. It ought to be determined and determined correctly. 
It does not make a great deal of difference in this case. I think myself 
that probably Mr. Wickersham Avill lose more votes by insisting 
that this 30 days’ precinct requirement be adhered to than Mr. Sulzer 
would. But it is before you gentlemen. 

Now, the records in this case of all the election districts in Alaska 
include the records from Fairbanks, and they will sIioav you that 
31 voters voted outside their precincts, 31 voted in the Fairbanks 
precinct registered from all OA^er the country. Some Avere subpoe¬ 
naed and said that they thought that that Avas AAdiat they had a 
right to do. And in more than one precinct in Alaska, more than 
one toAAm, an agreement Avas made such as the judge blames me for. 
to the effect that they Avould not challenge on that ground. They 
did not agree, as he led you to believe, to vote illegal voters; no 
body conspired to procure illegal A^oting. But in Cordova, AAdiere 
I was, there Avere a lot of people coming in from toAvns up toAvard 
Fairbanks. It Avas at that time of the year Avhen they Avere get¬ 
ting doAvn there to get their boats and get started out, and there was 
so much challenging that it looked as if eA^erybody Avas going to get 
into a general roAv, and they met up in Mr. Galen’s office and dis¬ 
cussed that. He said, “What do you say if Ave do not interpose any 
challenges, but let them Amte as they come?” They did it there and 
at other towns. At Charcoal Point they agreed on the same method, 
and it Avorked as well for one side as the other as far as I have 
been able to find out. Mr. Wickersham blames me for not stopping 
it. It Avas not my election. He blames me for it, and our national 
committeeman—Donahue—blames me for it. I had nothing to do 


WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 185 

with it. They say we lost Cordova by it. Wickersham mit all of 
those illegal votes. Of course, I get the blame, no matter what I do. 

Aow 1 am going to pass to another subject. These discredited and 
1 ejected ballots are not here before you. Mr. Wickersham states in 
his brief that the first thing that would be done would be for the 
committee to insist on them being gone over here and this fraud 
exposed. He makes much of it in his brief. 

The judge criticized me severely the other night for bringing 
the Kiggs family into this case. He says that he did not drag them 
in; that I dragged them in out of whole cloth, and make him ac¬ 
cuse them of crimes, and then roast him for it. Now, I will show 
you that the record justified my action, and I am going to read 
you what he says in his brief and show you what justification I 

extract from the newspaper wliich published 
Mr. \\ ickersham’s attack on Mrs.'Riggs. 

On page 19 of his brief, Mr. IVickersham says [reading] : 

The method adopted hy the partisan canvassing hoard in canvassing the re¬ 
turns of the 1918 election for delegate from Alaska was fui-tive and unfair 
and suspicious; whether it was criminal may he better judged if an exami¬ 
nation of the 40 or 50 so-called rejected ballots shall disclose that they are in 
the same condition of marking they were when cast. 

Now, here is another statement [reading] : 

If the canvassing hoard had been permitted hy Mr. Grigsby to make an open, 
public examination of those so-called rejected ballots, and had canvassed and 
counted them, as it did under the instructions of Mr. Grigsby, as attorney general, 
in the 1916 canvass, this contestant had the plurality and not Mr. Sulzer. 

There is no evidence to back up that statement. Now, he says 
[reading] : 

Those rejected ballots remained in the possession and control of the partisan 
Democratic governor, who is accused in this record of election frauds, both in 
1916 and 1918, for almost a year, and we are told no one but he has seen their 
contents; the ballots are marked generally with a leal pencil; the marks are 
easily erased and changed; neither contestant nor his attorney was permitted 
to examine them at any time—we fear the worst, hut still insist that they be 
now inspected, canvassed and counted by the committee, and fairly credited 
to the candidate for delegate according to the apparent intention of the voter, 
if that fair intention can be still determined from the face of his rejected ballot. 

That is after they had been in posession of the governor for a year, 
who was accused of election crimes in this record in 1916. 

Now, what crimes do the records show he was accused of in 1916? 
The crime of allowing his wife to vote in that election after she had 
got the advice of the United States District Attorney up there that 
she was entitled to vote, and he was never accused of any other crime, 
fraud or misconduct in connection with the election of 1916 except 
that Mrs. Riggs had not been in x41aska at that time for more than 
six months before election. 

The district attorney advised Mrs. Riggs that her residence fol¬ 
lowed that of her husband, and that she was a legal voter, and she 
voted. Now, when this contestant seeks to make you of his own opin¬ 
ion that these ballots are unsafe in the possession of the Governor of 
Alaska, because he has a criminal record, haven’t I a right to show 
you what crime he was accused of? Is that loading my brief, as he 
terms it? That is the first time I had an opportunity to know that 
any such accusation was going to be made when he filed his brief in 
which he makes it, not only in this case but in other paragraphs of 


186 WICKEESHAM VS. SULZEE (DECEASED) AND GEIGSBY. 

his brief. And in one part of his brief he would even sentence them 
to a term in the penitentiary. Oh, yes; you do. I will read it after 
awhile when we get to that subject. Most of our judges up there, a 
large part of the Army organization, and the Governor of Alaska, 
are consigned to various crimes and terms of imprisonment by Mr. 
Wickersham, in his brief. If you gentlemen have read it, you have 
noticed it. If you do read it, you will notice it. So that is the rea¬ 
son that I have a right to call attention to the purpose he had in 
making that accusation, to present himself here in the light of an 
abused man, who has been subjected to all kinds of election frauds by 
a bunch of “ criminal officials ” and gain sympathy for his case. And 
in the case of Governor Kiggs it is all because his wife voted in 1916 
on the advice of the district attorney. They went ahead and tried 
to indict her for it, his agents, his attorney of record in this case. 
His letters are in this record, and the record of the 1916 contest, and 
his friend sitting here in this room if I am not mistaken—are you 
Mr. Elliott? 

Mr. Elliott. Yes. 

Mr. Grigsby. When Tom Eiggs was nominatevl for governor, went 
over here to the Committee on Territories of the Senate and pro¬ 
tested his confirmation on the ground that he committed a crime in 
voting his wife in Alaska, and the committee upon receipt of a wire 
from the United States attorney at Fairbanks that he had so advised 
Mr. Riggs, ended their deliberations and unanimously confirmed him. 
That is on record over tliere. 

And Judge Bunnell, the judge who appointed the commissioner who 
created the 40-mile precinct is being held up over there in the 
Judiciary Committee by this man for election frauds which he is 
accused of in this record, which do not amount to tlie snap of your 
finger. But he has declared war on us up there. And consistently 
with his attempt to hold a seat in Congress, he is trying to hold up 
all Federal appointments. Now, I want you all, gentlemen, to 
scrutinize his accusations, and see the purpose of them. Judge of 
the foundation or lack of foundation he has for those accusations and 
determine how much weight you give any of his statements when 
he asks you to take his word as to facts or as to the law of this case, 
and you will have to study this case to come to a proper conclusion 
in that regard. 

Now, let us see why have not those records been brought ov.er 
here. I have found no fault with them. All this hullaballoo about 
tampering with the ballots, that he would have been elected if they 
had counted these ballots- 

Mr. Hudspeth. I understood that they were here. 

Mr. Grigsby. I am not contending that they are not here. I am 
wondering why Judge Wickersham did not want them here. I read 
several opinions before the canvassing board had canvassed the result 
of the 1918 election, and I make this statement, that there is no 
theory of law applicable to the powers and duties of the canvassing 
board of Alaska that they could have followed which could have 
resulted in giving the certificate of election to Judge Wickersham. 
If my opinion had been rendered exactly the opposite, it would not 
have changed the result, as far as establishing wlio had the plurality 
was concerned. As they found the result, Mr. Sulzer had a plurality 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 187 

of 33 votes. Now, you all know that a canvassing board can not 
go into questions of fraud. Everybody concedes, the judge will 
concede that the canvassing board could take no note of the fact 
that there was not an election at Nushagak. The canvassing board 
could not throw out Forty-Mile. The canvassing board could not 
discover that the election was held a little before 8 o’clock at Cache 
Creek. 

The Chairman. Have you not passed that station anyway? 

Mr. Grigsby. What station? 

The Chairman. The question of whether they should have can¬ 
vassed or not is now not material, because the question of the ballots 
is up to the committee, as I understand it. 

Mr. Grigsby. Yes; certainly, but I want to explain my attitude. 
Now you see, Mr. Chairman, Mr. Wickersham states in his brief 
that if it had not been for my opinion the canvassing board would 
have had to give him the certificate, and that when I found that by 
the method they were adopting he was gaining I butted in and 
made them adopt an opposite rule, and I Avent contrary to my advice 
given in 1916, which would put me in the attitude of switching my 
advice on election matters to suit the occasion, and not to be trusted, 
gentlemen, and I am a witness in this case, and 1 am trying to con¬ 
vince you that in some matters I am acquainted Avith what the law 
is. 1 AA^ant to explain that right. In 1916 and 1917 when AA-e can¬ 
vassed the result of the 1916 election, I was the first attorney general, 
and early in the canvass I Avas sent for and asked to come up to the 
board and they had opened up the returns from a precinct over at 
Douglas, Alaska, and they shoAved me a ballot which had been re¬ 
jected by the judges of election over at Douglas because the cross was 
on the right-hand side instead of in the square, and they asked me 
if they had a right to count that. 

I said, ‘‘ Why, yes; that ought to be counted. You Avant to count 
that because tliat shoAvs the intention of the voter,” or Avords to that 
effect. And that is the record in this case, taken from the minutes 
of the canvassing board, from the proceedings there at that time. 
Noav, that Avas an opinion given by me offhand—a sort of an opin¬ 
ion—^and I think everyone of you gentlemen Avould have answered 
the same Avay.- I Avas not an expert on election law. I had always 
running in, my mind the theory that the apparent intention of the 
A'oter AA as Avhat goA^erned, and that Avas the general drift of the old 
decisions, and the question of the poAvers of the canvassing board 
Avas not Avhat Avas most prominent in my mind at that time. It was 
mentioned: but Avhat I was thinking of Avas the right that they had 
to canvass that particular A^ote—Avhether that Avas a legal ballot 
or not. 

Mr. Chjndblom. Let me ask you this question: Did the act of the 
legislature relating to elections provide that the cross should be 
Avithin the square? 

Mr. Grigsby. Yes; it provides that, by setting up a form, in a A^ery 
indifferent manner; the language is not mandatory at all; there is no 
l^enalty attached; it provides that the ballot shall be in the following 
form, with the folloAving inscription placed at the top of the lyillot, 
placing the cross in the square opposite the name. So that it is not 
what Ave call a mandatory statute. It does not say, as modern stat- 


188 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

iites do. tliat any ballot voted in any other manner shall be void and 
shall not be counted. Such statutes as that have universally been 
construed to be directory. And in the absence of a showing of fraud, 
according to the ^reat weight of authority, such ballots have been 

counted. , • t i 

But in this last election—novv’^, we got into a contest in that election 
of 1916. And I subsequently rendered another opinion, on another 
question, relating to that election, after a great deal of study; and 
in that written opinion I instructed the canvuissing board that they 
could not do that, and, incidentally, that is in the record, and I will 
show it to the committee later. 

And when they called on me for my opinion on the specific ques¬ 
tion, in the spring of 1919, after I had been through one contest, I 
was a little more careful about putting myself on record and in study¬ 
ing the case, and I rendered an opinion, which is in the record here, 
telling them that they had no judicial power with reference to re- 
v’ersing the judges of election. The judges of election hav^e judicial 
powers, of course; they are judges of election; they are judges by 
term, by name; their powers are inherently judicial, as far as they go. 
And they pass upon the ballots before they send them to the gov¬ 
ernor, aiid then the canvassing board canvasses the returns. 

Now, here is what they had to do : When these returns [indicating] 
are sent in, here is what they had to do. The act provides; 

The election board at each polling? place as soon as the polls are closed shall 
iinniediately publicly proceed to open the ballot box and count and canvass 
the votes cast, and they shall thereni>on, under their hands and seals, make 
out a certiticate in duplicate of the result of the election, specifying the number 
of votes, in words and figures, cast for each candidate. 

That is all it has to specify; it does not say anything about speci¬ 
fying the rejected ballots. But the certificate shall specify the num¬ 
ber of votes, in words and figures, cast for each candidate; 

They shall then immediately carefully and securely seal up in one envelope 
one of said dupicate certificates; and one of the registers of voters, all of the 
ballots cast— 

That is, either rejected or counted— 

and all affidavits, and mail such envelope with said papers inclosed, in the 
nearest post offic-e, by registered mail, if_possible, duly addressed io the governor 
of Alaska, at his place of residence, with the postage prepaid thereon. 

The other duplicate certificate, without the ballots, goes to the 
clerk of the court. 

Mr. Chindblom. From what law are you reading now? 

Mr. Grigsby. The United States law of 1906, with reference to the 
canvassing of returns—which the Legislature of Alaska has not at¬ 
tempted to change in general elections at all. 

Now, when the clerk of the court gets this, it is provided that he 
shall, as soon as he receives the said duplicate, certifying the result, 
which certificate has only to specify the vmtes cast for each candi¬ 
date, at once make out and duly mail to the governor a certified copy 
of such certificate. 

Now, the governor, the surveyor general, and the collector of cus¬ 
toms shall constitute a canvassing board for the Territory of Alaska 
to canvass and compile in writing the vote specified in the certificates 
of election. The rejected ballots are not specified in the certificates 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 189 

of election. And all that the statute says they shall do is that they 
are to canvass and count the votes specified in the certificate. 

Now, aside from the fact that the canvassing boards have no 
judicial powers to overturn the result as determined by the judges 
of election, under this statute they could not do it. The canvassing 
board—whether I was reversing myself or not in that opinion—the 
canvassing board canvassing the 1918 election, could not count those 
rejected ballots; and there was no court that could do that. So that 
it was one of those cases that had to come up here to Congress. There 
is such a thing as a community being handicapped by such an elec¬ 
tion law that their contest can not be settled, except in a legislature 
or in Congress; and this is one of those cases. Under our present 
laws, the only tribunal that can pass upon questions of this kind 
is Congress. 

And I think you gentlemen will conclude, when you read the 
authorities that I have cited in support of that in my opinion, that 
I was right when I so advised the legislature. But had they pur¬ 
sued the opposite course—if there had been enough of those rejected 
ballots to change the result in favor of Judge Wickersham, there 
would have been something in what he says, that he might have got 
the certificate. 

Now, every one of them is described here in this record; and Mr. 
Wickersham’s attorneys were there and saw every one of them; and 
one of his attorneys sat right up by the governor, and they were 
treated with every courtesy, as the record shoAvs. I have treated 
that subject extensively in my brief, showing the extent to which 
they participated in that canvass and Avere alloAved to examine the 
returns. 

When Judge Wickersham says that they Avere never allowed to 
inspect or see those ballots he goes contrary to the evidence in this 
case. Noav, I want you to read that part of the record, which is 
quoted in my b^ief from the top of page 9 to the bottom of page 13, 
and see Avhether or not these gentlemen had a fair opportunity to take 
note of these rejected ballots. 

And then, when you bring them over here, if they have been 
tampered with by the goA^ernor—Avhether by lead-pencil marks that 
liaA^e been erased, or in any other manner—I think that science will 
afford you gentlemen sufficient facilities to discover it. And you haA^e 
got a record here of Avhat Avas their condition when they were sealed 
up. As I figure out, there were 15 votes rejected Avhere the apparent 
intention of the voter Avas to vote for Mr. Sulzer, and 15 votes re¬ 
jected Avhere the apparent intention Avas to vote for Mr. Wickersham. 
f may liaA^e OA^erlooked one or tAvo, but that is as near as I can figure 
it out. Judge Wickersham had access to a copy of these minutes, 
and he makes no claim, except in a general Avay, to cast insinuations 
upon the goA^ernor of Alaska and the officials there, to kind of com¬ 
bine all of those officials together in a conspiracy to ruin him and 
so that you will associate in your minds the irregularities up in the 
Forty Mile precinct with the failure to hold an election oA^er in 
Nusliagak, 2,000 miles aAvay. I think that this record shows, gen¬ 
tlemen, that we had a remarkably pure election up in Alaska. I 
have in my brief, and in my eAudence, proved some illegal Amtes, but 
I have not alleged any fraud. I do not presume that every irregu- 


190 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

larity is criminal; I do not presume that, because Mr. Wickersharn’s 
workers, in their zeal, after a strenuous campaign up there in 
Alaska—because they go out and grab up a lot of Indians who never 
voted in their lives before, and herd them up at the polls and vote 
them—I do not want to put them in the penitentiary; and I can 
not conceive how a United States commissioner, over at Nushagak 
can be presumed to be guilty of a crime and fraudulent intent, be¬ 
cause one of the precincts in his recording district did not happen 
to hold an election, when there is no evidence to support the accusa¬ 
tion that he is guilty of fraud. 

There is not a particle of evidence in this record that would be 
admissible in a court of justice to go before the jury to show that 
there was no election held at Nushagak, except that they did not send 
the returns in, which is not inconsistent with the fact that there 
might have been an election. Here is a Ignited States commissioner 
over there—Dr. French—I do not know him: but he is employed by 
the Government: a man whose duty it is, as Mr. Wickersham says, 
to appoint judges of election and furnish election supplies; and 
there were not any returns that came in from Nushhagak; and Judge 
Wickersham puts a man on the stand, down in Seattle, by the name 
of Preston H. Nash, who swears that there was not any election held 
in Nushagak on election day, although he was not over there on that 
day, and was not over there afterwards, and does not know whether 
there was one or not; he swears that supplies were not sent over, but 
he does not show how he knows it: he testifies in response to leading 
(piestions. If you gentlemen Avill read the evidence of Preston H. 
Nash you will find that no foundation is laid to show that he knows 
anything about it: he testifies to conclusions—altogether to conclu- 
sionk 

And finally, he says that there were 28 or 80 people over there that 
he thought were voters: he does not know Avhether they were or not; 
and that most of them would have voted for ^Ir. Wickersham, if 
there had been an election, in his opinion. 

Mr. Elliott. ATere there any returns made from that jirecinct ? 

Mr. Grigsby. No: there were no returns made from that precinct. 
And that occasionally happens in Alaska; it happened at Bristol 
Bay; and in the wintertime you do not even hear from there for 
months. I do not think there was an election there. 

Mr. Hudspeth. AWiere is this Dr. French now? 

Mr. Grigsby. I do not know: I suppose lie is in Dillingham, or in 
Choggiung. 

Mr. Hudspeth. I want to ask this question: AVas his testimony 
taken as to why he did not send supplies, or why he did not appoint 
judges of election? 

Mr. Grigsby. No, there was no testimony taken on that subject, 
except that of a man in Seattle: and he says that on one occasion he 
started over there to take these supplies there, but they did not de¬ 
liver them; and he says they were not taken over; and he says that 
this Dr. French gave them to a man named Hall; and he says that 
Hall did not take them over. He was not asked ho^v he knew that, 
or anything of the kind. He was just testifying to a conclusion. 
He says the supplies did not go there; he says that they did not have 
an election. 


WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 191 


Now, conceding that they did not have an election, there is nothing 
in the record against this Dr. Frencli; hut for the purpose of argu¬ 
ment, I want to show you what is in the record. I want to call your 
attention to Mi*. Wickersham’s brief on this subject of Nushagak. 
His testimony on the subject of Nushagak is confined to the testi¬ 
mony of Preston Nash, a witness who testified in Seattle. Nushagak, 
you will remember, is in the recording district in which there is also 
the precinct of Choggiung, at which an election was held; it is 
across the river from Choggiung, and a few miles up the river; I 
believe the town of Nushagak is 7 or 8 miles up the river. 

The law of Congress makes it the duty of the United States com¬ 
missioner to divide that recording district into election precincts, 
and makes it his duty to appoint judges in each precinct, to give 
notice of elections, etc. 

Now, he did divide his district into voting precincts; he gave the 
necessary notices of election. The only other thing he could fail 
to do was to ajipoint judges; unless he failed to appoint judges, he 
was in no way at fault. 

Now, there is not a line of evidence in the testimony of this man 
Nash—and he is the only witness that says anything about election 
judges at Nushagak—as to whether they were appointed or not; he 
says they were appointed at Choggiung, but he does not testify that 
they w^ere not appointed at Nushagak. 

Noav, let me show you what Judge Wickersham says. This is his 
description of the testimony of the witness Nash, which was given 
August 6, 1919, at Seattle, and will be found in full on pages 76 to 
80 of the record. He testifies as follows: 

He testifies that he is 45 years old, a citizen of the United States, 
a married man, a Government school-teacher, and so forth, and so on. 

He testifies that Dr. French is the commissioner who has charge 
under the law of laying out the voting precincts and appointing the 
election officers. That in 1918 Dr. French renewed the two old- 
established precincts of Choggiung and Nushagak and called for an 
election in each, and actually posted notices in Choggiung and Nu¬ 
shagak to that effect. \ 

He testified—that is, Nash did, according to Mr. Wickersham- 
that Dr.. French received the election supplies from the clerk of the 
court, the blanks, books, etc., which were used at Choggiung; that he 
selected, appointed, and notified election officers in Choggiung, and 
furnished them with official blanks, records, books, etc*.; but failed 
and refused to perform those duties in Nushagak; that is, appoint¬ 
ing election officers and furnishing supplies; that he received these 
blanks, official election books, etc., in July; that he was over in Nusha¬ 
gak several times between that time and election day, November 5, 
and as late as on October 22, but did not appoint election officers or 
deliver blank supplies there. Mr. Wickersham says that Nash testi¬ 
fied to that; he tells you gentlemen that in this brief. Now, Nash 
did not testify to anything of the kind. Nash never testified to any¬ 
thing from which the inference could be drawn that that commis¬ 
sioner failed to appoint election judges. 

Mr. Hudspeth. Where did Nash live—at Choggiung or Nushagak? 

Mr. Grigsby. At Choggiung. He did not testify as to whether or 
not Dr. French appointed judges of election at Nushagak; there is 


192 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


nothing in his testimony from which Judge ickersham could have 
got the idea that he so testified. But Judge 11 ickersham repeats here 
to you gentlemen three times—quoting Mr. Nash for it, and then goes 
on and says it himself three times, that Dr. French failed to appoint 
the judges of election in Nushagak. 

Now, this testimony is given in j)ages 76 to 80 of the record. I 
want to read you from part of that brief, with reference to that 
Nushagak matter, and then read the testimony of Mr. Nash, and then 
let you figure out why it was necessary to waste a couple of hours’ 
time here discussing Nushagak the other night. There is not any¬ 
thing required by the congressional law to be performed by Dr. 
French that there is a ])article of evidence in this case that he did 
not do. 

I am going to read the rest of my time to-night, if it takes the 
whole evening to read this testimony of Preston H, Nash, given at 
Seattle. It is as follows: 

DKESTON H. NASH, liaviiiji’ been first duly sworn, testified as follows: 

Direct examination by Mr. Wickersham : 

Q. State your name.—A. Preston H. Nash. 

Q. How old are you?—A. Forty-five. 

Q. Where is your residence now?—A. Well, I am at present residing in 
Seattle. 

Q. How long have been here?—A. I came down here about the 1st of 
June. 

Q. Where did you come from?—A. Bristol Bay, Alaska. 

Q. How long had you resided out on Bristol Bay, Alaska?—A. Well, I re¬ 
sided in Bristol Bay, and the rivers emptying into it, for six years. 

(y Are you a citizen of the United States?—A. Yes, sir. 

Q. And a married man?—V. Yes. 

(). Did your family reside out there with you?—A. Yes, sir. 

Q. IVhat business were you engaged in at that time?—A. I was teaching 
Government school. 

Q. How long did you teach school out there?—A. I taught school in Bristol 
Bay and vicinity there six years. 

Q. Under what authority?—A. Under the Bureau of Education of Alaska 
schools. 

Q. Where did you reside on Bristol Bay on November o, 1918, at the time of 
the general election?—A. At a i)lace called Chogiung, but the post office is Dill¬ 
ingham. 

Q. How far are Dillingham and Chogiung apart?—A. They are not apart. 
Dillingham is a little place, about 4 miles below, and they change the*pcst office 
up to Chogiung and called it Dillingham. 

Q. So that the post office at Chogiung is called Dillingham?—A. Yes. sir; 
the post office at Chogiung is called Dillingham. They didn’t change the name 
of the i)ost office when they moved it to the lower place. 

Q. Sometimes you have your mail addressed to Chogiung and sometimes to 
r)illingham?—A. It is the same place. 

Q. How far is that from the Nushagak polling precinct?—A. Diagonally, 1 
I)resume it would be 8 or 0 miles. 

Q. Where do they hold elections in the Nushagak voting precinct?—A. I 
think in the schoolbouse tlu're in Nushagak, either in the schoolhouse or store, 
some place; I think generally in the schoolhouse. 

(y In what commissioner’s district is the Nushagak voting precinct in?— 
A. Dr. L. H. French’s. 

(}. Dr. L. H. French, he was the commissioner?—A. Yes, sir. 

Q. AVhat is the commissioner’s district called; is it called the Dillingham dis¬ 
trict oi‘ the Chogiung district?—A. I think it is called the Dillingham district. 

Q, The recording district?—A. I think so. 

Q. How many voting pi-ecincts are there in the Itillingham recording dis¬ 
trict ?—A. Two that I know of; Chogiung, where I live, and across at Nushagak. 

(>. Those two precincts are in the Dillingham commissioner’s district, and 
Dr. Ij. H. French was the commissioner?—A. Yes, sir. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 193 


Q. How long- had he been commissioner prior to November 5, 1918?—A, 
Iteally, I don’t know. 1 think he had been commissioner probably six or seven 
yeai’s. I wonld not be positive; but it has been a long time there, except one 
\\ inter he went out on a vacation, and, I think appointed another commis-sioner, 
and when he came back, lie took it back again. 

(}. He was commissioner during the year 1918?—A. Oh, yes, sir. 

Q. He had charge of the laying out of the polling precinct in that recording 
district for the election of November 5, 1918?—A. Yes, sir. 

Q. And the appointment of election officers under the law?—A. Yes, sir. 

(}. Do you know what he did in the way of making those two voting pre¬ 
cincts in 1918? Do you know whether any notice was given of the holding of 
the election, or not?—A. There was a notice given in each place. 

Q. In each precinct?—A. Yes, sir. 1 know there was one in ours, and they 
claimed there was one in the other. I didn’t see it. It was not across the river. 
But they claimed that they had notice. 

(}. What about you receiving supplies for tbe Nousegat precinct, book.s, and 
blanks, etc.?—A. Well, I think that he received them on the last mail boat, I 
think, in July. 

Q. At the same time that he received all of them?—A. I think so. 

(}. The bust mail boat was there in July?—A. Yes, sir; unless he received 
them on the Nome boat. I don’t know whether they would have come from 
Seattle. That was the only boat that was in there. 

Q. You had the supplies in your precinct?—A. Yes, sir. 

(}. Yon are sure about that?—A. Yes, sir. 

Q. Did you vote in the Chogiung precinct on November 5, 1918?—A. l^es, sir. 

Q. And your wife?—A. Yes, sir. 

Q. You voted for Delegate to Congress in both of those precincts? —^A. Yes, sir. 

Q. Was there an election held in the Nushagak district?—A. No, sir. 

Q. Do you know whether or not Dr. French was over in the Nushagak pre¬ 
cinct some time prior to the date of the election?—A. Yes, sir. 

{}. How long prior to that?—A. Well, I was down to his place on Monday 
night, I think it was October 7, and Supt. Miller, of the schools, was there. I 
know this because I went down to visit him, instead of his coming to visit the 
school. I went to see him, and he and Dr. P^'rench, on the boat on October 8, in 
the morning, left the Dillingham, the cannery site, toward the hospital, and 
crossed over to Nushagak on October 8, and from there they went to Naknik. 

Q. Naknik is not in that recording district, is it?—A. No, sir; I think there 
is another commissioner across on the other side; but they went over to get 
supplies from this Nome boat. 

Q. Do you know whether he took the supplies over for the election of Novem¬ 
ber 5, 1918, at the time that he went over in October?—A. No, sir. 

Q. He didn’t take them?—A. No, sir. 

(}. Do you know what l)ecame of those supplies; who did take them over?— 
A. Well, there was none. 

Q. To whom were they delivered, do you know?—A. Just a minute; he was 
there after this'boat. He made two trips in October, over to Nushagak. 

Q. He made two trips to Nushagak?—A. Y^'es. 

Q. How late in October?—A. It was probably between the 18th and the 22d. 

I could not tell the exact date, but I know that he went there the second time 
to go to Naknik. They were geting supplies from his boat at Nome that 
brought things up there. 

Q. Do you know whether at any of those times he took supplies over for the 
holding of the election on November 5?—A. No, sir; he did not. 

Q. Do you know what he did do with those supplies tinally?—A. Well, there 
was a man by tbe name of Hall—I don’t know his first name—but when he 
went on the second trip over to Nushagak to go to Naknik he took this man 
Hall. INIr. Hall is the storekeeper there, and he took him to Naknik and 
got some things for him—potatoes and things—and they came back to Dilling¬ 
ham to the hospital, and when they arrived there the river was just begin¬ 
ning to fre(‘ze ice, and the next morning the ice was floating up and down, 
and they could not cross. They could not cross. 

Q. Aiid the supplies never were taken over?—A. The supplies never were 
taken over. And he gave then to Mr. Hall. 

Q. Did Mr. Hall take them over?—A. No, sir. 

Q. Who was Mr. Hall?—A. INIr. Hall was a German alien. 


181744—20-13 



194 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Q. How do you know that?—A. I was actinjr as ])ostniaster in this little 
place of Chojiiuna:, or Dillinjihaiii, diiriiis Otto liarsen’s absence. He appointed 
me deputy postmaster, and there came a law, I think, sometliina' np to Alaska, 
to register all alien enemies, and he wais one of them, and he registered as an 
alien. 

Q. How do yon mean registered?—A. Well, he came over there, and they had 
a regular form, and he signed his name and, I think, affixed his tinger print. 

Q. Yon say those supplies were delivered to him. Did he ever get them over 
to Nushagak before that election?--A. No. sir. He wais in Choginng at the time 
of the election, tie could not get over. 

Q. And there w’as no election held in Nushagak?—A. No, sir. 

Q. Dr. French is a Democrat?—A. Well, I think he is, from the waiy he talks? 

Q. Was he is supporter of mine?—A. No, sir; he was not. 

(}. Was he opposing me?—A. Dh, yes, sir. 

Q. To w'hat extent?—A. Well, he was electioneering against you. I know' 
that at one time I w'as dowui there to his place, and the question came up about 
the contest betw'een you and Mr. Sulzer, and I told him—I don’t know' whether 
w'e w'ould get into the question of a talk thereabout it—I told him I thought 
from some statements that there w'ere some things unfair there, etc., just in a 
conversation. So tiiially he up and he said that you w'ere an enemy to the 
bureau of education and an enemy to the public schools, or something of that 
kind. Of course, he is superintendent* over me there; and I told him that you 
might be, so far as I knew', but it would have to come from you; that I had 
read a great many of your si^eches and a great many of your congressional 
reports, and I had never seen anything from you that indicated you w'ere an 
enemy to the bureau of education. 

Q. The short of it is that he electioneered against me and did w'hat he could 
to defeat me?—A. Yes, sir; I know' that. 

Q. What did he do?—A. Before that time he w'as around the village 
Choginng talking to the men, because he told me. 

Q. Did he talk to you[—A. No, sir; he didn’t talk to me. There w'as no use 
to talk to me about that. 

Q. He W'as commissioner in that precinct, in that district?—A. Yes, sir. 

Q. And recorder?—A. Y’'es, sir. 

Cross-examination by IVIr. Leehey : 

Q. Justice of the peace, and the w'hole thing?—A. I think all that goes to him. 

Q. He was also superintendent for the bureau of education, and had charge 
of your work over there?—A. I’^es, sir. 

Q. And he was a doctor?—A. Yes, sir. 

Q. What official connection did he have w'ith the w’ork as a physician?—A. 
Well, he doctored the natives. 

Q. So that he w'as the principal man in the community?—A. Yes, sir. 

Q. Do you know' w'ho he appointed election officers in the Choginng precinct, 
in your district?—A. Yes, sir. 

Q. Who?—A. He appointed J. C. Low'e, Charles Nelson, and a man named 
Ow'iuby. I don’t know' his first name. He w'as the guard at the jail. 

Q. He W'as the guard at the jail under the deputy marshal?—A. Yes, sir. 

Q. What did the other two men do?—A. Mr. Nelson w'as the cannery winter 
man, w^atchman at the cannery. 

Q. And the other man?—A. He w'as a trader. 

Q. Were either of them friends of mine?—A. No, sir. 

Q. Were either of them Republicans that you know of?—A. I don’t know 
about that. 

Q. But they w'ere opposing me at the election?—A. Yes, sir. 

Q. None of them friendly?—A. No, sir. 

Q. Why didn’t he send those papers over to Nushagak precinct in time to hold 
the election over there?—A. Well, I don’t know. 

Q. Did he have an opportunity to do it?—A. Well, he w'as there twice himself 
in the month of October. 

Q. And the election w^as held November 5?—A. The election w'as held Novem¬ 
ber. 5. 

Q. As a matter of fact it w^as his duty under the law' to call the election, 
appoint election officers, and see that the supplies got there, because the supplies 
were all sent to him ; is that correct?—A. I’^es; I think so. 

Q. And he didn’t send them over?—A. No, sir. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 195 


Q. And there was no election over there?—A. No, sir. 

(}. How many people live over there?—A, Well, I don’t know how many do 
live there. I made out a kind of a list. 

Q. I asked you to make out a list?—A. Yes, sir; I made out a kind of a list; 
hut there are some there I don’t know—I know them all, but I don’t know 
their names. 

Q. How many names did you put down?—A. I put down 27. 

There are others you don’t know?—A. There are others I don’t know. 

Q. Do you think it is safe to say there were 30 voters in that precinct in the 
iSushagak precinct?—A. Oh, yes; Giat is. taking it all round, the whole precinct. 

Q. Do you know anything about the feeling of those voters over there toward 
me? A. Well, I have heard them express their opinion, a great many of them. 
I am acquainted with them, and I think there were two or three of them against 
you there. 

Q. And the rest were for me?—A. The rest were for you. 

Q. Are .vou quite satisfied from your knowledge and acquaintance with those 
people that that proportion of those people owuld have voted for me if the 
election had been held there?—A. Df course, a man don’t know. I can only 
know from what they said. When it came to voting it might have been differ¬ 
ent. I know from what they spoke, all but two or three. I never heard them 
speak either way, but somebody said that they voted against you, only two of 
them. 

Q. Is that why he didn’t send those papers over there?—A. That is the way 
I thought it was. I don’t know whether they think that. 

Q. The people are of the opinion that you didn’t send the papers over and hold 
that election, because he thought the great majority of the voters would be for 
me?—A. That is their public opinion about it. 

Q. What is your judgment about it, from what you know?—A. To be frank 
with you—of course a man swearing, you can’t swear what a man will do, 
but- 

Q. What is your best judgment?—A. I believe in my heart that that is the 
reason that he didn’t send them over there. 

Q. He had an opportunity to send them?—A. He had, twice, and there were 
people come over to the hospital from Nushagak, tha lived in Nushagak, and 
he was there twice that I know. 

Q. And he didn’t provide for that election in that precinct?—A. No. 

Q. And those people didn’t get to vote at all?—A. No, sir. 

(). And your judgment about it is, from your acquaintance with the people, 
that all but two or three of them over there would have voted for me?—A. That 
from their talk, it is known as a Wickersham precinct there. 

Q. The Nushagak precinct?—A. Yes, sir; the Nushagak. 

Q. Your precinct was very largely inhabited by the doctor and his friends?— 
A. Yes, sir. 

Q. That is the Chogiung precinct?—A. Yes, sir. 

Q. In that precinct there is Dr. French, the commissioner, and there is the 
United States marshal there?—A. Yes. 

Q. And guards, and other officials?—A. Yes, sir; and hospital nurses. 

Q. And all those people were against me?—A. Yes, sir. 

Q. All of them?—A. Yes, sir. 

Q. The men who appointed them to office up there are all Democrats, are 
they not? Judge Brown is a Democrat?—A. I guess; sure. 

Q. Marshal Brennan is a Democrat?—A. Yes, sir. They were all talking that 
way. When they came around on the boat they were all electioneering for Mr. 
Sulzer. 

Q. Who was around on the boat that you spoke of?—A. Mr. Castler, the 
traveling marshal. 

Q. What was he doing?—A. I think he traveled, comes up there, and picks 
up the prisoners that they have there, and takes them out, those that are crazy, 
etc., and takes them down here to the States, or anyone that has a little prison 
sentence. Do you want the list of these names? 

Mr. Wickersham. I think I will ask him to put a list of these names in the 
Nushagak precinct in the record at this point. 

Mr. Leehey. I guess it is all right. I don’t suppose’ he is positive whether 
those are citizens or not and live there. 



196 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


P>y Mr. WiCKKRSHxVM: 

Q, Wliut do you know about tliat?—A. I think they are all citizens. They 
live there. I think they are all citizens, so far as I know. 

Preston H. Nash. 

Sul>scrihed and sworn to before me this 6th day of August, A. D. 1919. 

[Seal.] Harold H. Hartman, 

Notary Public in and for the State of Washinyton. 

The following is a copy of the list of names said by Witness Nash to be voters 
in the Nusluigak precinct: 

T. Patten. 

Louis England, wife. 

.Tohn P>ergland, wife, and wife’s sister. 

Mrs. Cassivamp. 

- Lanbberg. 

- Ostertrum, wife. 

Hog Harry. 

John Nocholson, wife 
Louis Hauser, wife. 

- Anderson, wife. 

P»ert Johnson. 

Thomas Douglas. 

Gust Tret (Tretcoft), wife. 

Fred Paulson, wife. 

- Pluddy, wife. 

Thomas Simes. 

You will notice that here is a fellow claiming that they did not 
haA'e an election there. And yet he was across the river, 9 miles 
away, according to his own statement. 

Yon will also notice that the Avitness, Xash, Avas not asked about 
Avhether Dr. French appointed those election judges. It Avould 
almost look as if Judge Wickersham kneAv that Dr. French did 
appoint those judges, because he so carefully refrains from asking 
Nash about that. I do not see hoAv he could help asking him that. 

Mr. O’Connor. Let me ask ^mu right there: Was there any fail¬ 
ure at any place to hold an election in any precinct in Alaska, due 
to the nonarrival of the proper papers or the nonappointment of 
judges? 

Mr. (jRiGSBY. I knoAv there liaA^e been i^recincts from Avhich re¬ 
turns have not been receiA^ed; but Avith the exception of the election 
of 1916 and the election of 1918 the elections liaA^e not been close 
enough so that there Avas any record eA^er made of it. 

In 1916 Mr. Wickersham had a plurality of J1 on the face of the 
returns, as the vote came in, before it Avas finally canvassed; and 
in 1918 Mr. Sulzer had a plurality of 33; so Ave noticed anything 
of that kind, you see. But I could not name any instance of that 
kind if there was one formerly. 

Noav, here is the record. I haA^e read it to show you that con¬ 
testant has tried to manufacture a case in this Nushagak precinct 
out of the whole cloth. 

Mr. Chindblom. Is there any proof in the record that anybody 
voted in the Choggiung precinct Avho was a resident in the Nushagak 
precinct ? 

Mr. Grigsby. No, sir; there is no proof of that. Of course, the « 
\mting listps here, but it Avould not show whether they are residents 
of Nushagak or not. I am going to come to that proposition. 

The Chairman. Well, that question, as I understand, is not raised 
by either of you ? 






WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 197 


Mr. Grigsby. No ; except in connection with this. 

Mr. O’Connor. AYell, it would be important if those voters living 
in precincts in which an election was held voted in other precincts? 

Mr. Grigsby. Of course, it would, if there was an 3 dhing here in 
the record showing it. 

Mr. Chindblom. lYell, I just wanted to ask you if there was any 
evidence of that kind in the record ? 

Mr. Grigsby. Mr. lYickersham says in his brief that Dr. French 
did appoint election officers in Choggiung, but ‘‘ failed and refused to 
appoint any election officers for Nushagak,” and that no election was 
held in Nushagak. 

Now, remember that these election officers have to be appointed 
30 days before election; and the election notice has to be posted 30 
days before the election. If he did appoint these judges under the 
law he would have to do it 30 days before the election; and this man 
Nash does not testify about amdhing except what happened within 
30 days; he does not pretend to know anything that happened before 
then, and he does not claim to know anything about it; and there is 
no evidence by him or anybody else that the commissioner did not 
do his duty and appoint the election officers. 

Ylr. Hudspeth. Is there any testimony that he posted notices at 
Nushagak? 

Mr. Grigsby. Y"es, sir; the witness Nash says he posted the notices 
at Nushagak and Choggiung. Shall I go back and read this testi¬ 
mony again? Do you dispute that. Judge Wickersham? Y^ou shook 
your head just now. 

Mr. Hudspeth. Perhaps you might reread part of that. 

The Chairman. I think t recall the testimony. 

Mr. IYickersham. The record shows that he Avas not over there. 

Mr. Grigsby. The record shoAvs that he was OA^er there. 

Mr. Wickersham. This man Avith the papers—that he did not de¬ 
liver these papers appointing the officials; that he did not deliver 
anything. 

Mr. Grigsby. lYell, this man testifies in tAvo places that the proper 
notices Avere posted; and I at this time will not read the record 
through to show you that and bore you gentlemen Avith it; but I will 
find it and read it to you at some other time. 

Noav, Judge Wickersham goes on to say - 

The Chairman (interposing). As I understand you, Mr. Grigsby, 
there is no testimony in the record relatiA^e to this transaction ex¬ 
cept the testimony of Mr. Nash? 

Mr. Grigsby. Mr. Nash—that is all there is. 

Mr. Wickersham. And the certificate of the clerk that there was 
no return. 

Mr. Grigsby. That there Avas no return from Nushagak. But I 
meant Avith reference to the appointment of the judges of election. 

The Chairman. That was my inquiry. 

Mr. Chindblom. Did that congressional hiAv prescribe any specific 
time within Avhich the supplies should be delivered? 

Mr. Grigsby. The congressional election law imposes no duty on 
the commissioner to take any supplies over—or on anybody else. 
The congressional hiAvs do not prescribe any duty on anybody to 
furnish any supplies. 


198 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. Hudspeth. Where do they get that law—from the Territorial 
legislature ? 

Mr. GpvIGSby. There is no territorial law, except the act of 1915. 
Here is section 13 of the act of 1915 of the Legislature of AHska, 
which Judge Wickershain says is an absolutely void act. This act 
provides that the clerk of the district court shall forward to each 
United States commissioner in the division, and to every election 
board or authorized official in unincorporated towns, at least 100 
ballots for each 50 voters in the recording districts and incorporated 
towns. Section 15 provides that the United States commissioner of 
each recording district shall supply to the election judges, or the 
authorized officials in incorporated towns, the required number of 
ballots for each voting precinct. 

Section 21 provides that in any precinct where the election has 
been legalty called and no official ballots have been received, the 
voters are permitted to write or print their ballots; but the judges 
of election shall, in this event, certify to the facts which prevented 
the use of the official ballots, which certificate must accompany and 
be made a part of the election returns. And if the judge failed to 
do his duty under the territorial laAV and take those official ballots 
over there, then, under section 21, the voters could make their own 
ballots, so that they would not be deprived of their votes anyhow. 
And, as a matter of fact, there were not any official ballots in Chog- 
giung either; and they did make up unofficial ballots and certify to 
the facts in Choggiung. 

So, evidently, there were not any official ballots that reached the 
commissioner at all; and there is no evidence that any election sup¬ 
plies reached him for Nushagak, or whether they did not; but if he 
appointed the judges of election, posted notices of election, and did 
everything that the law required him to do, except this “void act of 
1915,” if he failed to comply with that, then section 21 gives the 
voters a remedy. 

So that there is nothing in this Xushagak case; there is nothing 
in it to go to a jury with; there is not enough to resist a demurrer 
on in this Xushagak case that we have spent five or six hours on. 

Xow, I am going on a little more with it; this in from Mr. Wick- 
ersham’s brief, page 45: 

Witness Nash testified tliat he was well aeqnainted with the inhahitants 
of the JNiisha.u’ak votinjr i)reciiict, from his six years of residence amoiijj them, 
and presented, under oath, a list of 26 names of persons residing; in the Nnsha- 
j;'ak voting i)recinct, and says there were others whose names he round not 
recall, and that there were more than 80 qualified voters in the precinct. He 
also swears very posilively that the electors in the Niishasak precinct were 
friends and political supporters of this contestant, and declares that all but 
two or three of tho.se he named would have cast their votes for Wickershain 
if they had been permitted to vote. He also declares that it is the public 
oiiinion there that the reason why French refused to appoint election officers 
and to furnish official hlaidvs, etc., to the Nusha.a'uk votin.j? precinct was that 
he knew the electors there would vote for this contestant. 

Xow, just think of that. That is the second time that he puts it 
in the mouth of the witness, after misquoting him twice. And he 
has to show this failure to a])point the judges in there or there is 
no case. So he does it bodily in the brief. There is nothing in the 
record to justify it. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 199 


That is not all, I will now read what Judge Wickersham says at 
the bottom of page 46 of his brief: 

French’s duties as commissioner of elections in the Dillingham district in 
1918 were clearly pointed out by section 5 of the congressional act of May 7, 
1906 ( 34 Stat. L., 169, 171), which provides in the most mandatory way that 
the commissioner shall, at least 60 days before the date of the election, issue 
an order, to be signed by him and recorded in his official records, and perform 
these duties: 

“ First. Divide his election district into such number of voting precincts 
as may in his judgment be necessary or convenient.” 

Which French did by creating Choggiung and Nushagak precincts. 

“ Second. Give notice of said election, etc. * * That at least 30 days 

prior to the date of holding of such election the commissioner shall select, 
notify, and appoint from among the qualified electors in each voting precinct 
three judges of election for said precinct, no more than two of whom shall be 
of the same political party. Said commissioner shall notify all of said judges 
of election of their appointment as such, so that each and all of them shall 
receive said notice at least 10 days before the date of the election.” 

French did not comply with this last statutory mandate— 

That is, did not appoint the judges. 

Mr. O’Connor. And notify them? 

Mr. Grigsby. Well, either appoint them or notify them; there is no 
evidence that he did not do that. Judge Wickersham goes on: 

He cunningly refused to comply with it, because he well knew the people in 
the Nushagak precinct, reinforced by a number of settlers formerly residing 
in the Choggiung precinct, would give this contestant a large majority of their 
votes. 

Xow, where is the evidence of this migration from Choggiung to 
Nushagak? Do you rememher anything about that? I hai^e 
examined the record for it. Judge Wickersham, while he has got 
his hand in, not only puts testimony into the mouths of the witnesses 
that they never uttered; but he moves or migrates the people about 
from one precinct to another, in his imagination. 

Noav, gentlemen, I am going to go on and show that there is just 
as much fraud and deception in every one of his contentions in this 
case as there is in that, before I get through with this argument. 
He has not come through clean in any of them. 

That is as far as I care to go this evening, Mr. Chairman. 

(Thereupon, at 11 o’clock p. m., the committee adjourned until 
Friday, April 2, 1920, at 1.30 o’oclock p. m.) 


Committee on Elections No. 3, 

House of Representatives, 

Friday^ April 2^19W. 

The committee, at 1.30 p. m., this day met, Hon. Cassius C. Dowell 
(chairman) presiding. 

The Chairman. The committee will please come to order. A quo¬ 
rum is present. Mr. Grigsby will proceed. 

Mr. Grigsby. This is a defective and unauthenticated copy of the 
Anchorage testimony taken in behalf of the contestee. I agreed that 
it was not a copy to be printed, but there is no dispute going to be 
raised about that; but the other copy I should like to have. 

The Chairman. What is this [referring to paper in hand] ? 



200 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. Grigsby. That is the Ketchikan copy. 

The Chairman. Then, I do not want this. 

Mr. Grigsby. Well, it has been printed, but the witnesses did not 
sign the depositions. 

The Chairman. That was properly sealed and the seal has just 
been broken. 

Mr. Grigsby. This is the second copy of the testimony taken at 
Ketchikan in behalf of the contestee, the original copy of which was 
printed in the record, in which several of the witnesses had failed 
to sign their depositions. The certificate shows what it is. I should 
like to have it appear in the record that this testimony is accompanied 
by the following certificate: 

United States of America, 

Territory of Alaska, ss: 

I, Will H. Winston, a notary public in and for the Territory of Alaska, duly 
commissioned and sworn, residing at Ketchikan. Alaska, do hereby certify that 
pursuant to notices to take depositions heretofore filed herein, served on con¬ 
testant James Wickersham, at Ketchikan, Alaska, personally appeared before 
me, at my office in Ketchikan, Alaska, tlie following witnesses on behalf of 
George B. Grigsby: Ben Ridley, Louie Hudson, James Starr, Joseph John, 
Mark Williams, Walter Prank, Jimmie Wallace, IMatt Fawcett. 

That said witnesses were by me first duly sworn to tell the whole truth and 
nothing but the truth and then and there gave their depositions as herein set 
forth upon oral interrogations propounded to them by George B. Grigsby, con¬ 
testee, and by his attorney CharlesH. Cosgrove; that after said depositions were 
typewritten they were subscribed and sworn to by the following-named wit¬ 
nesses : Louie Hudson, James Starr, Joseph John, Mark Williams, Matt Faw¬ 
cett. 

That Walter Prank, Jimmie Wallace, and Ben Ridley are a considerable 
distance from this city and it is impossible to obtain their signatures to their 
depositions without large expense and great delay. 

In witness whereof, I have hereto set my hand and affixed my official seal 
this 7th day of January, 1920. 

[SEAL.] Will H. Winston, 

Notary Pul)l\c for Alaska. 

There are three witnesses that did not sign. This shows that five 
of them have signed. Three witnesses could not be found and there¬ 
fore did not sign. The three that did not sign are Walter Frank, 
Jimmie Wells, and Ben Eidle^L They live a considerable distance 
from the city, and it was impossible to obtain their signatures without 
much expense and delay. 

STATEMENT OF MR. GEORGE B. GRIGSBY, A REPRESENTATIVE IN 
CONGRESS FROM ALASKA—Continued. 

Mr. Grigsby. Now, Mr. Chairman, I was speaking of the Nushagak 
precinct Avhen I closed last night, and I only have this to say in regard 
to the vote of this precinct, that the proposition advanced by the 
contestant that on account of the failure to hold an election at Nusha¬ 
gak the vote at Choggiung should be cast out is not supported by any 
authorities that he read nor by any authorities that I have been able 
to find. The precincts have no relation to each other whatsoever, ex¬ 
cept that in the performance of his ministerial duties the United 
States commissioner organizes those precincts, and after the returns 
are made from those precincts he has nothing to do with it. They 
are not made to him; the returns are sent direct to the governor or 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 201 


to the clerk of the court of the division, and become a part of the 
Avhole returns from the whole territory. 

Ill the case of a divisional office for the failure to hold an election 
at Nushagak the loss of a sufficient number of votes to change the 
result would requii*e a neiv election in the division to fill that office. 
In the case of a territorial office, if there is a sufficient loss of votes 
to change the result, it would result in throwing out the whole elec¬ 
tion for the territorial office unless the injured party can show the 
number of votes he lost, who they ivere, and how they would have 
voted, by satisfactory evidence, which is not in this record. We have 
nothing except the opinion of a man down in Seattle that 27 or 28 
people were inclined to vote for Mr. AVickersham, all but two or 
three of them, and he thought they were all legal voters, which, of 
course, is not sufficient evidence to authorizing their counting. So, if 
you do find there was anything in this Nushagak proposition and there 
were sufficient votes there not cast, and which were fraudulently 
prevented from being cast, to change the result, you would have to 
decide that there was no election; and the authorities hold that, as 
you will find on examination of the many authorities that have been 
cited. Now, the other day Mr. AVickersham went back to the elec¬ 
tion of 1916 in an effort to give this committee to understand that 
he has had a very hard time of it and was kept out of office for nearly 
two years owing to the action of the Federal judge up there in enter¬ 
taining a mandamus proceeding and compelling the canvassing board 
to issue a certificate of election to the other man, his opponent, Mr. 
Sulzer. 

Now, I do not think that hardship that Mr. AAuckersham has 
undergone in connection with politics is going to affect the com¬ 
mittee in the determination of this case at all. But so far as that 
is concerned, if you will look back through his political record you 
will find that he has been very fortunate. He has experienced a 
change in luck the past two or three years. Perhaps that is only 
temporary. You can not tell what will happen in the future. Now, 
Mr. AA^ickersham served as Federal judge from 1900 to 1907. He 
w^ent off the bench in 1907. He served in Congress from 1908 until 
March 4, 1919. So he is not to be classified as an unfortunate poli¬ 
tician or one who has been adversely treated in politics. Here is 
all Judge Jennings had to do with it. Fender the election law of 
1915 the clerks of the district court were authorized to provide a 
form of official ballot, prescribing the style of the ballot, the color 
and dimensions of the paper to be used, the provisions for blank 
spaces for the insertion of the names of candidates not printed 
upon the ballots, etc. On account of the great distances up there 
and the possibility that the ballots might not reach all the precincts, 
the legislature added a section to enable the voters to hold an election, 
even if they did not get the official ballots, and this is the section: 

Sec, 21. That in any precinct where the election has been legally called and 
no ofiicial ballots have been received the voters are permitted to write or print 
their ballots, but the judges of election shall in this event certify to the facts 
which prevented the use of the official ballots, which certificate must accom¬ 
pany and be made a part of the election returns. 

Noav, here is a law^ wdiich, if valid, prescribes the use of an official 
ballot for all elections. If the legislature had authority to pass that 


202 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

law, then as far as the prescription as to the use of the official ballot 
is concerned it is mandatory in all elections. They passed laws so 
that an official form of ballot shall be provided for all elections, and 
unless that is mandatory then it does not mean anything. If ^mu 
construe that as directory, then you can dispense Avith the official 
ballot in any precinct you desire. 

Mr. Hudspeth. You hold that Avhere judges are appointed and 
fail to materialize, that the people can proceed Avith the election by 
selecting their oAvn judges. 

Mr. Grigsby. Under the laAV Avhere they liaA^e been appointed and 
fail to appear the people are permitted to select their oAvn judges. 

Mr. Hudspeth. The people shoAv their political attitude by Acting 
at the election, and for that purpose select their oavu judges? 

Mr. Grigsby. They select their oAvn judges in that eA^ent. 

Mr. Hudspeth. Do you hold that the ]ieople’s rights are annilii- 
lated and destroyed because some official fails to appoint judges? 

Mr. Grigsby. In Xeshigak, for instance? 

Mr. Hudspeth (interposing). Any place. 

Mr. Grigsby. No, I do not. 

Mr. Hudspeth. Is not the failure of the judges to materialize and 
•the failure to appoint them one and the same thing, so far as the 
people’s right to assemble and hold an election is concerned? In 
other words, those people can assemble and hold their election, re¬ 
gardless. 

Mr. Grigsby. I see Avhat 3^11 mean. Suppose the commissioner 
did not do anything for them at Nushigak, for instance, and they 
made a selection of judges, held their election, sent their returns in 
and stated the circumstances; under the law, the canAuissing board 
could not count it, but Avhen it came doAvn here to Congress, Congress 
has the right to determine the equities of the situation and can do 
as it pleases about it. Noav. in this act, in order to proAude for an 
election where the official ballots Avere not furnished, theA^ passed this 
section that permitted the Amters to make their OAvn ballots, that 
contained the clause Avhich says, in Avhich eA^ent the judges of 
election shall certify to the facts Avhich preA^ented the use of the 
official ballots, which certificates must accompany and be made a 
part of the election returns.” Noav, in 1916, certain returns came in 
to the canvassing board Avithoiit that explanatory certificate, and 
the question came up as to Avhether they could be canvassed or not. 
Of course, if the statute had gone on to say, “ Avhich certificate must 
accompany and be made a part of the election returns, otherwise they 
can not be canvassed,” then it Avould haA^e been expressly mandatory, 
and the board Avould haA^e been bound by it no matter how much 
injustice Avould have been done by it, because the statute required it. 
Noav, as to the question of it not being expressly mandatory but 
being impliedly mandatory—Avhen it said that the certificate must 
accompany the returns, did it mean that otherAvise they could not 
be counted? Was that mandatorA" or director}^? The canA^assing 
board decided that it Avas directory after I had advised them that 
it Avas mandatory. 

My opinion is in the published report there, but if that section is 
construed as directory to the canvassing board, then in any precinct 
in Alaska 3 mu can dispense Avith the use of the official ballot entirely. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 203 


Although you make no explanation the canvassing board would 
be conipelled to count it—which would destroy your whole 
Australian ballot act and leave up to the voters in every precinct and 
the judges of election to dispense with it or not as they saw fit, thus 
opening the door wide to corruption and fraud, which the Australian 
ballot act is designed to prevent. The test of the mandatory char¬ 
acter of a statute is whether a departure from the direction of the 
statute would defeat its purpose. To hold this section 21 directory 
would defeat the purpose of the Australian ballot act. It was, there¬ 
fore, clearly mandatory and just as binding on the election board as 
if it was expressly mandatory. Well, the canvassing board refused 
to hold that it was mandatory, and they were about to announce 
their intention to count those votes. Under the law, they could not 
say Avhether those official ballots had arrived or not. They had these 
returns there with these unofficial ballots and no explanation and 
no means of correcting it or seeking an explanation, and they de¬ 
cided to hold in favor of counting the ballots. Mr. Sulzer started 
mandamus proceedings and secured a temporary injunction. The 
canvassing board made a return in which they stated their situation— 
that they had received these ballots in that shape. Mr. Sulzer’s 
attorneys demurred to the return, so that it went up before Judge 
Jennings simply on the question as to whether this statute was 
mandatory on the canvassing board or not, and he held that it vras. 
He issued a writ of mandamus directing the board not to count these 
ballots and to return a certificate of election accordingly. 

lYell, that determined the result. These ballots happened to be 
from the Choggiung and Xushagak and other precincts. Now, 
when it came down here before the Elections Committee the com¬ 
mittee decided that the statute Avas directory, especially so far as 
the House of Eepresentatives Avas concerned; and they reAueAved and 
analyzed the circumstances and also examined some letters which 
were put in eAudence from the judges of election out there in these 
precincts, one or tAvo of them, in AAffiich they said the ballots did not 
get there, and decided that the inference to l)e drawn from all the 
facts and circumstances was that the official ballots did not get there, 
and, therefore, these Amtes Avere legal. But I don’t understand that 
it Avas expressly held that Judge Jennings was wrong in the first 
place, because he was considering the demurrer, and, of course, no 
eAudence was presented to him. There Avas no evidence from those 
precincts of any kind. Now, I think he Avas right. 

Mr. O’Connor. Of course, you can understand that the ballots 
did not arrive and the people \letermined to use some other means. 

Mr. Grigsby. If the House Avas satisfied that these ballots did not 
get out there they had a right to count them, because they are not 
bound by the decision of any court. According to the precedents 
of the itouse of RepresentatiA^es they are bound in almost all cases 
by the decisions of State courts, construing State statutes, and they 
wmuld be bound by the decisions, according to the same theory, of 
a Federal court construing Territorial statutes, but they could abso¬ 
lutely say he was right so far as the action of the canvassing board 
was concerned, and still hold that they had the right to count these 
ballots, so that their decision is not inconsistent with the decision 
of the court. 


204 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


XoAY, there was no question about the authority—that is the point 
I was coming to—the authority to maintain this mandamus pro¬ 
ceeding. I Avill read to you from the syllabus in 36 Wisconsin, 498, 
Avhich was not cited in Judge Jennings’s opinion; and there are 
numerous other cases where State courts hold that the power of the 
court in mandamus proceedings extends to all ministerial acts of 
election officers. Of course, the court can not use that right to inter- 
fee with any judicial discretion, that is a general principle, but 
the court can compel the canvassing board to assemble, can compel 
them to proceed to count the returns, and if a return is absolutely 
void on its face, without any question the court can exclude it. 
When he finds out that they are going to dispense with counting 
valid returns and issue a certificate to the wrong man he can issue 
a writ of mandamus and compel them to include all the valid returns 
and exclude those that are void. 

I will read from McDill v. Board of State Canvassers, reported 
in the 36 Wisconsin, 498, from the syllabus: 

In a i)r()per case this court will require the hoard of State canvassers to 
determine in accordance with law which one of the candidates in an election 
in this State for the office of Representative in the (^onjiress of the United 
States is entitled to their certilicate of election. 

In such a case the power of deterniinin.i; the rijiht to the office is vested, by 
the Uonstitiition of the United States, Article I, section 5. exclnsively in the 
House of Representatives itself, and this court, therefore, can not . 2:0 behind 
the returns and investigate frauds and mistakes and ad-jud^je which candidate 
was elected ; hnt it can determine whether the return made to the State board 
of the votes cast in any county for such office should be included by the State- 
board in their canvass and statement of the votes cast for said office. 

There is the Supreme Court of Wisconsin in the case of the election 
of a Bepresentative. In this case the petitioner sought a writ of man¬ 
damus to compel the convassing board to exclude certain definite 
returns, exactly as in the Alaska case, and they decided in that case 
they had the power to entertain a proceeding to investigate the merits 
and refuse or grant the petition, to compel the canvassing board to 
count or not to count. So, noAv, if this statute had said, “ which cer¬ 
tificate must accompany and be made a part of the election returns, 
otherwise they can not be canvassed or counted ”—supposing the leg¬ 
islature had the poAver to pass it and these returns came in Avithout 
official ballots, Avithout a certificate, there Avould be no question about 
the poAver of the court to mandamus them not to count, and the only 
thing then for the court to consider is, is the laAv mandatory, is it 
equivalent to what it would haA^e meant if it had been expressly 
mandatory. Judge Wickersham appeared before the Judiciary 
Committee over in the Senate and tried to stop Judge Jennings’s con¬ 
firmation on account of that decision: and Senators Walsh and Colt 
found that Judge Jennings had committed no impropriety and were, 
in fact, positiA^ely of the opinion that he had the right to entertain 
the proceeding and leaned toAvard the conclusion that he Avas right 
in his decision as far as the points raised before him AA^ere concerned, 
but the question of the constitutionality of the statute never Avas^ 
raised in that case by the attorneys. I think there was one other 
point which Senator Walsh said put him in doubt, but neither one 
of them—and both are leading lawyers of the Senate—said there Avas 
anything Avrong Avith Judge Jennings’s decision, and the report has; 
been published giving their views of the situation. 


WICKERSKAM VS. SULZER (DECEASED) AND GRIGSBY. 


205 


Now, that was the case up in Alaska. I was attorney general and 
legal adviser of the canvassing board, and I had the responsibility 
of advising them in that matter, and they refused to follow my 
advice, (lov. Strong was a candidate for reappointment. He could 
not get the backing of the Democratic organization up there. They 
started a fight on him to prevent his reappointment, and in the 
course of that fight discovered that he was not a citizen of the United 
States, that he was born in NeAv BrunsAvick and had never beei; 
naturalized; and when we showed that to the Secretary of the In¬ 
terior he Avithdrew his name, and the name of Thomas Riggs went 
in; and, as I stated last night, a fight was made against his confirma¬ 
tion. AVhen the fight Avas going on with Mr. Strong, just after AA^e 
got his name AvithdraAAm, the primary election for Delegate to Con¬ 
gress took place in Alaska on the last Tuesday in April, 1918. We 
haA^e the primary in April and the e^^tion in NeA^ember. The people 
were divided, and they did not knoAv oiat we had this citizenship fight 
on against Mr. Strong. There AA^as no other candidate for the Re¬ 
publican nomination, except Mr. Wickersham. Some AAdio sym¬ 
pathized Avith ^Ir. Strong conceiA^ed the idea of putting another 
Democrat up to run against Mr. Sulzer, and we had a heated election. 
Mr. Sulzer beat him a little over 2 to 1, I believe; but the IVicker- 
shamites all OA^er the Territory Avent into the Democratic primaries, 
so Ave did not knoAv Avhat the result Avould be until the votes Avere 
counted. There is evidence offered in this case to the effect that 
certain soldiers Amted in the Democratic primaries, as eAudence that 
they voted the Democratic ticket in the fall election. 

Mr. Chindbloai (interposing). Hoav many contested elections haA^e 
you had in Alaska ? 

Mr. Grigsby. This is the second—one in 1916 and another in 1918, 
are the only tAvo AA^e have had. 

Mr. O’Connor. Are the Republican and Democratic primaries 
held on the same day ? 

Mr. Grigsby. They are. 

Mr. O’Connor. HaA^e you registration rolls wherein electors are 
su]iposed to register their party affiliations ? 

Mr. Grigsby. No, sir. 

Mr. O’Connor. Hoav do you knoAv a Democrat from a Republican? 

Mr. Grigsby. lender the law as it existed when we had our first 
primary election the Amter called for a ballot of the party he desired 
to vote for and he had to place that ballot in that party box. The 
last legislature passed an act compelling him to declare his party 
affiliation. 

Mr. O’Connor. You say these primaries are held on the same day? 

Mr. Grigsby. Yes. 

Mr. O’Connor. So, if a man voted for a Republican, that shows 
that he is a Republican and he can not vote for a Democrat. He 
could Amte six months in adA^ance. 

Mr. Grigsby. There was no law then providing that you have to 
declare your party affiliation. A year ago last Avinter I spent a 
couple of Aveeks preparing a registration laAV compelling registra¬ 
tion in primary elections long enough before election so that the party 
affiliation Avoiild be registered before the election, and that was de¬ 
feated by the Wickersharfi followers in the legislature-headed by 


206 WICKERSHAM VS. SULZER (DECEASED) ANQ GRIGSBY. 

Dan Sutherland. They are on record as opposed to every advance in 
modern legislation in the interest of pure politics in Alaska. All 
the wickedness and corruption up there is not in the ranks of the 
Democratic Party. 

Mr. O’Connor. Were you selected in the Democratic primaries ? 

Mr. Grigsby. Xo; we did not have any primaries. I was elected in 
1916 for four years. 

Mr. O’Connor. I mean for Delegate to Congress. 

Mr. Grigsby. No; there was no special election primary. And 
we could not have gotton a Delegate down here until the special ses¬ 
sion was over, had there been one. 

Mr. O’Connor. Then that election was held under this act of the 
territorial legislature ? 

Mr. Grigsby. The special election? 

Mr. O'Connor. Yes. 

Mr. Grigsby. Yes. They repealed the section regarding the offi¬ 
cial ballot. 

Mr. O'Connor. Did they have the right to repeal any act of Con¬ 
gress in existence or in force before the passage of that Territorial 
act? 

Mr. Grigsby. It was not repealing any act of Congress. 

Mr. O’Connor. I mean, did they have the right under that law ? 

Mr. Grigsby. They did not have any right to repeal any act of 
Congress relating to special elections. 

Mr. O’Connor. I want to say, the way you read that last night 
and as I understood it then that the Territorial act of Congress 
gave to the Territorial legislature the right to alter or amend any 
act in existence or in effect, and the legislature acted within that 
grant of power, and that you did not transcend or violate any of 
the prohibitions of the bill; that it was a valid exercise of the legis¬ 
lative power of Alaska. 

Mr. Grigsby. I see what you mean now. That theory occurred to 
me so recently that I did not extend it to that special election. 

Mr. O’Connor. And yet it may be that they had the right to re¬ 
peal the provisions of the act of 1906 in so far as that related to 
special elections or any other election, because it would not affect 
the validity of the special election act at all. 

Mr. Grigsby. We will come to that a little later. 

Mr. O’Connor. It gives you the right of special election in case 
of death or disability, and I believe that is as far as Judge Wicker- 
sham goes on the proposition. 

Mr. Grigsby. Impliedly, all laws which interfere with a right 
given them by Congress are rendered inoperative, as far as special 
elections are concerned, and the statute goes on to say that such 
election-when held must be governed by the laws of Congress. Now^ 
when you give the legislature the right to fill a vacancy you im¬ 
pliedly give them the right to fill that vacancy when the vacancy 
arises, a special election being an emergency election to fill a vacancy. 
Mr. Wickersham says the time for holding a special election may 
be fixed by a special notice. The act of 1915 provides that the 
governor shall call a special election to fill a vacancy by giving 30 
days’ notice—-no more nor less than 30 days. It did not provide 
how he wa^ to give that notice, how it was to be published, or 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 207 


anything else. A clause was incorporated in the act of 1919 which 
made it possible to hold the election, which the legislature is given 
the authority to fix or prescribe the time for holding. Manifestly, 
if we can hold an election on 30 days’ notice the order can not be 
made 60 days prior thereto. The authorities are cited in my brief 
to the effect that all acts inconsistent with the* holding of an election 
30 days after notice published by the governor are repealed by im¬ 
plication as to special elections. They are not absolutely repealed, 
because they still exist in full force so far as applicable. So far 
as the returns are concerned it does not make any difference, ac¬ 
cording to all the authorities, whether the returns come in in the 
regular way or not. When we come down here before you gentle¬ 
men the question is. Who was elected? It does not make any differ¬ 
ence whether any returns came in if I can prove that I was elected. 
The ballot boxes may be burned up. 

If the board determines after election day that a certificate of 
election should be issued to me, anything that develops after that 
with reference to the manner of receipt of returns does not cut any 
figure in the case, provided I was legally elected on election day. As 
to the question whether I was elected or not, the actual returns re¬ 
ceived by the canvassing board direct from the various election pre¬ 
cincts are in the possession of the Clerk of the House and will show 
an election was held in 159 out of a total of 164 precincts in Alaska. 
The total vote in the 15 precincts which hold no special election, 
estimated according to the vote cast in those precincts in the June 
election of 1918, was less than one-fourth of my majority. So you 
will have no difficulty in ascertaining that I was duly and legally 
elected. 

I shall now proceed to discuss one of Mr. Wickersham’s conten¬ 
tions, which is treated in his brief under the head of “ Frauds in Use 
of Australian Ballot.” This refers to the fact that in several pre¬ 
cincts in southeastern Alaska in the election of 1918, which Mr. 
Wickersham is contesting, the judges of election failed to detach 
the numbered stubs from the ballots before the same were deposited 
in the ballot box. I believe there were 50 or 60 ballots cast where 
the judges of election so failed to perform their statutory duty. And 
if these ballots'were cast out on account of such failure of the elec¬ 
tion judges it would reduce Mr. Sulzer’s plurality by about 30 votes. 

Mr. Hudspeth. Now, as I understand that, that was something the 
voter had nothing to do with. It was entirely within the hands of 
the election board to do that, was it not? 

Mr. Grigsby. The A^oter Avas not at fault. The law places the duty 
upon the judges of election to detach the numbered stubs. As a 
general principle the voter can not be disfranchised by the failure of 
election officials to perform their duty; that is, except in cases where 
the law itself provides such a consequence to the Amter on account of 
such error or omission of election officers. 

Mr. Elliott. We have a very complicated election laAV in Indiana, 
and, among other things there is a provision that requires the clerks 
of elections to put their initials at the lower left-hand corner on the 
back of the ballot. There was a case that went to the supreme court 
where the clerks failed to put their initials on the back of the ballot. 
The vote had been thrown out by the election board, and my recol- 


208 WICKERSHAM VS. SULZEK (DECEASED) AND GRIGSBY. 


lection is tluit the Supreme Court of Indiana held that the ballot 
could not be thrown out and a man could not be disfranchised 
through failure of an election officer to do his duty as required by 
law. That would seem to be on the same basis. 

Mr. Chindblom. I will say, on the contrary, in Illinois there is a 
provision of the law which requires one of the judges to place his 
initials on the back of the ballot. Where those initials have not been 
so placed, under repeated decisions of our supreme court those bal¬ 
lots can not be counted. There is this to be said with reference to 
the right of the voter, that he is presumed to know the law, and 
before he returns his ballot to the judge who is to place his initials 
on the back of the ballot to be deposited in tlie ballot box he has the 
right to call attention of the judge to it if the initials are not there 
and to require him to put them there. 

Mr. Hudspeth. In this particular case before us the voter had noth¬ 
ing whatever to do with tlie tearing off of the coupon. It was his 
business to hand this back to the clerk with that coupon on it. He is 
entitled to assume, it seems to me, that that officer did what the law 
required him to do. 

Mr. Chindblojm. But, as I said a moment ago, he is supposed to 
knoAv the law, and he is supposed to tear off' that coupon before it is 
deposited in the box. When the voter hands it back to the judge to 
be deposited) in the ])ox, if the voter observes that the coupon is not 
torn off he is supposed to call attention of the judge to it and to re¬ 
quire him to tear it off. But, of course, we can not say whether the 
laws of Indiana or the laws of Illinois can be construed as applying 
here. 

Mr. Grigsby. There is this distinction, too—while the general prin¬ 
ciple is that a voter can not be disfranchised by the neglect of an 
official, if the statute says he can, then he can, of course. If the 
statute says ballots from which the numbered coupon is not detached 
can not be counted and the judge fails to detach them, then the voter 
is disfranchised because of the neglect of the official, because voters 
have no right to anything except what is granted by statute. 

Mr. O’Connor. Does the statute say that?, 

Mr. Grigsby. No; our statute does not say that. But when you 
read the election decisions, as I have done, you wdll find that some 
construe statutes strictly and some liberally, some as mandatory and 
some as directory. Now, I was asked for an opinion on this matter, 
and I gave an opinion on these particular ballots, which is in this 
i)ook I have handed to you gentlemen, and I first said that these bal¬ 
lots having been counted, that in accordance with my previous opin¬ 
ion the canvassing board had no power to overturn the judgment of 
the judges of election. Now, in addition to this, I will say that the 
election law passed by the legislature in 1915 contains no provision 
with regard to throwing out ballots on account of the distinguishing 
marks, which probably your Illinois election law does. Section 3 of 
chapter 25 of the Alaska election laws reads': 

The ballots shall he headed: “ Official Ballot.” of the .iiidicial division in 
which it is issued, and at the top thereof, above a perforated line, shall be dupli¬ 
cate stubs hearing consecutive numbers; one of said stubs to be retained by the 
election judges upon presenting the ballot to the voter; the other stub to be 
torn from the ballot by the election judges and compared and retained upon 
the return of the voter from the voting booth. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 209 


hat is done with the stubs after they are detached, the laws does 
not provide. Presumably they are destroyed. The procedure is 
this—the voter is handed a ballot having thereon duplicate stubs. 
One is detached when he is given the ballot and retained by the elec¬ 
tion judge, while the A’oter goes to the booth to mark liis ballot. 
After he marks his ballot he folds it and brings it back to the election 
officer, Avho compares the stub remaining thereon Nvith the stub he 
holds in his hand. If the numbers on the two stubs correspond the 
election judge detaches the second stub and deposits the ballot in the 
ballot box. This system AA^as deAused to prevent the form of election 
fraud knoAvn as the “ endless chain.” 

When the Australian ballot law Avas first adopted it did not have 
this duplicate-stub system. A Amter could go to the polls, obtain an 
official ballot from the election officers and walk out Avith it. All that 
it was necessary for the persons desiring to perpetrate the fraud Avas 
to obtain possession of one blank official ballot. Ha\dng so obtained 
one blank official ballot any number of votes could be purchased. 
The blank ballot could be marked as desired, delivered to the Amter 
whose A^ote Avas to be purchased, such Amter Avould walk into the polls, 
demand a blank ballot, retire to the booth, return to the voting place 
and deposit the ballot already marked for him outside the polls, then 
walk out with the other blank ballot in his possession. This in turn 
would be marked for a second voter, voted in the same manner, and 
another blank ballot obtained, and so on, indefinitely. That was the 
Avay the endless chain worked. The duplicate-stub system was de¬ 
signed to make impossible this form of fraud. Under the duplicate- 
stub system the voter must Amte the same ballot handed him by the 
election officer. The numbers on the stubs are compared, conse¬ 
quently an attempt to Avork the endless-chain system can be instantly 
detected. In the precincts in question, which Mr. AVickersham seeks 
to liaA^e this committee throw out, there is no fraud shoAvn, but simply 
the fact that the judges of election failed to detach the second num¬ 
bered stub from the ballots before the same were deposited in the 
ballot box. Mr. AVickersham asks you to presume fraud on account 
of this irrgularity. The law is otherAvise. As I said before, I ren¬ 
dered an opinion on this matter to the canvassing board, which is 
contained on pages 138 to 140 of my published report, copies of 
which have been furnished to this committee. I will read from this 
opinion, commencing on page 139 of the report: 

Section 17 provides that Avhen tlie \"oter enters the pollin, 2 : place he shall be 
given an official ballot by one of the election judges with which he shall retire 
to the booth or screen and there mark the same for the candidate of his choice. 

Section 24 provides a penalty to be imposed upon any person or officer Avho 
has assumed the duties of any officer under the provisions of the act, Avho shall 
Avillfully and corruptly neglect and refuse to perform any duty or do anything 
required of him by the act. 

There is no provision anyAAdiere in the act declaring the consequences to the 
voter or his vote of the failure of an election judge to perform the duty re¬ 
quired by laAV in detaching the numbered coupons from the ballot. In the 
marks there are no authorities Avhich hold that ballots cast under such circum¬ 
stances are void. On the contrary, the authorities hold otherwise. 

Lynip v. Buchner (41 Pac. 762) ; 

.Tames B. IVIcGrane v. County of Nez Perce (112 Pac. 312) ; 

Farnhain v. Boland (66 Pac. 200). 

In the latter case the court said: 

“ Those ballots were properly counted, which the officers of election placed in 
the ballot box without first tearing therefrom the numbers attached. It is 

181744—20-14 


210 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


quite apparent that these violations of the law arose from the carelessness of 
the election officers. Such carelessness or misconduct upon the part of these 
officers may render them liable to severe i)enalties, hut that is all. The law 
as to identifying marks refers to marks made by the voter, and it is only marks 
made by him that demand the rejection of the ballot. After citing many cases 
to the point, this court said in People ex rel. r. I^rewett (24 Cal. 13, 56 Pac. 
621) : ‘The principle underlying these decisions is that the rights of the voters 
should not be prejudiced l)y the errors or wrongful acts of the officers of elec¬ 
tion, unless it shall appear that a fair election and an honest count were 
thereby prevented.’ ” 

In Freshour 1 '. Howard (77 Pac, 1101), the court said: 

“ The failure or neglect through ignorance or carelessness on the part of the 
precinct election officers, to remove the number of the ballot, did not have the 
effect to make the ballot illegal on the ground of a distinguishing mark placed 
thereon by the voter.” 

See, also, in re Groton (118 N. Y. Sup. 417) : 

“ It does not appear anywhere in the election law of 1915 that it Is required 
that the voter is handed a ballot by the election officer with a number on the 
stub corresponding to the number set opposite the name of the voter in the elec¬ 
tion register. It can not, therefore, be presumed that the retention of the stub 
on the ballot affords any means of identification.” (Opinions of Attorney 
General, p. 139.) 

The views expressed in the opinion I have just read are not con¬ 
tradicted by any authorities that I have been able to find. Mr. 
Wickersham cites you an authority Avhich he claims is in point, to 
wit, the contested election case of laukea v. Kalanianaole, reported in 
Moore’s Contested Election Cases, page 30. This case was decided in 
the Fifty-ninth Congress. It is not in point. They had an election 
law in Hawaii providing that the Secretary of State should arrange 
for the printing of the ballots, providing of ballot boxes and general 
conduct of elections, but the decision in this Hawaiian case states that 
this law did not apply to the election for Delegate to Congress. 
However, the Secretary of State and election officers of Hawaii at¬ 
tempted to apply the general election law to the election for Delegate. 

The law as stated in the contest decision declares “ that the ballot 
shall bear no Avord, motto, device, sign, or symbol other than alloAved 
therein,” and “ if a ballot contains a mark or symbol contrary to the 
provisions therein set forth, it must be rejected.” The HaAvaiian 
election law had no proAusion for numbering the ballots. The Elec¬ 
tions Committee, Avho decided the HaAvaiian contest, held that when 
the election officials of HaAvaii attempted to apply this general elec¬ 
tion laAv to the election for Delegate to Congress they Avere bound by 
its provisions. They proceeded to have the ballots printed on Avhich 
Avere numbered coupons. The numbered coupons Avere not authorized 
by the HaAvaiian statute, consequently they came Avithin the pro¬ 
hibition that the ballots should bear ‘‘no Avord, motto, sign, or sym¬ 
bol other than alloAA^ed therein.” 

In the HaAvaiian case, as in this case, the judges of election failed 
to detach the numbered coupons from the ballots before depositing 
them in the boxes. The committee A^ery properly held that these 
ballots contained a distinguishing mark prohibited by the statute, 
and as expressly required by the statute on account of such distin¬ 
guishing marks these Avere rejected. In addition to that both parties 
to the contest conceded that such ballots ought to be rejected, and 
the committee adopted their contention. In other words, in Haw^aii 
the election Avas conducted under a laAv Avhicli did not authorize the 
numbered coupons at all, but expressly prohibited them, and pro- 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 211 


vided for tlie rejection of any ballots containing any marks pro¬ 
hibited. It Avas a mandatory statute in that respect. In Alaska, on 
the contrary, the law expressly proAudes for the numbered coupons, 
but contains no proAusion AvliateA^er against distinguishing marks. I 
submit not only that there is nothing in iVIr. Wickersham’s contention 
AAuth regard to the ballots complained of, but that his contention is 
not made in good faith, as clearly appears from his brief. On page 
108 of his brief he states as folloAvs: 

In section 22 it is provided there shall he a registration (d’ the voter when he 
is given Ids official ballot, and his ballot and name in the registration hook are 
given the same nninher, thus identifying both the ballot and the A’oter as long as 
the number is left on the ballot. 

It was necessary for contestant to make that misstatement in order 
to support his theory that an opportunity for fraud was afforded by 
the failure of the judges of election in the precincts in question to 
detach the numbered coupons. He attempts in the statement I haA^e 
just quoted to make this committee belieA’^e that the Uiaa’^ of Alaska 
required the number on the ballot to correspond AAuth the number 
opposite the voter’s name in the registration book. But section 
which I haA^e just quoted, makes no reference AA^hateA^er to.the num¬ 
bering of the liallot or to an}^ number in the registration book. The 
word “ number ” is not contained in section 22. I haA^e fully ex¬ 
plained this attempt of contestant to deceive this committee on pages 
145 to 151 of my brief, and there is no use discussing the subject 
longer, except to say that contestant, as in the Nushagak conten¬ 
tion, is again guilty of a deliberate attempt to deceiA^e this committee 
both as to the laAv and the facts. The contention of Mr. Wickersham 
with regard to the throwing out of ballots from AA^hich the numbered 
coupons Avere not detached is made in bad faith, as aauII be perfectly 
evident to the committee upon an examination of the briefs of con¬ 
testant and contestee on this subject. 

Noaa", I am going to discuss ^Ir. IVickersham’s contention AAuth ref¬ 
erence to alleged illegal Amtes cast for Mr. Sulzer in southeastern 
Alaska. I have stated in my brief that if you gentlemen adopt the 
theory that Amtes cast in a precinct by voters not haAung a residence 
of 30 days therein are not legal, then in that event the evidence estab¬ 
lishes that the following Amted in the Avrong precinct and Amted for 
Mr. Sulzer, to wit: Charles A. Sulzer, E. Van MaA^ern, AY. (1. Allen, 
Mrs. W. G. Allen, H. J. Kaymond, Mrs. H. J. Kaymond, F. Jacobson, 
Mrs. F. Jacobson, J. K. McNeil, eloseph A. Snow. 

I also concede that S. Kincaid was not a resident of Alaska and 
voted for Sulzer. That makes a total of 11 votes cast for Sulzer in 
Southeastern Alaska, 10 of which are illegal if 30 days’ residence in 
the precinct is required. On the other hand, notwithstanding that 
they voted in the Avrong precinct these 10 votes were cast by persons 
who Avere legal residents of Alaska and citizens of the United States. 
They \mted under the belief that they Avere entitled to Amte anvAvhere 
in their division. Each one testified frankly Avithout objection on 
the part of contestee that he voted for Sulzer. There is no justifi¬ 
cation in any aspect of the case for Mr. AAJckersham to characterize 
these Amtes as fraudulent. However, Mr. AAJckersham claims 24 
illegal votes Avere cast for Sulzer in Southeastern Alaska, of which 
I concede 11, including the vote of S. Kincaid, aaJio was not a resi- 


212 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


flent of Alaska, and including the 10 whom I have named, who voted 
in the wrong precinct. ()f these 10 votes one was cast by Mr. Sulzer 
himself, and although there is no evidence that iNIr. Snlzer voted for 
himself I have conceded that he did because I would not have it go 
down in history that I conceded he might have voted for Mr. Wicker- 
sham. I will concede that Mr. Sulzer voted for himself because the 
presumption is that he was of sound mind. No doubt Mr. Wicker- 
sham voted for himself. 

Mv. Chindbuom. Doiil)tless both men thought they ought to vote 
for the best man. 

Mr. (jRiGSBY. Eliminating these 11 votes 13 are left which I shall 
proceed to discuss briefly. They are: Mrs. S. Kincaid, George A. 
Nix, Bert Heath, J. C. Cochran, “ The Tailor,” W. S. Chapman, 
William Semar, Mrs. Semar, Giis Gillis, Mrs. Gus Gillis, Steve 
Began, Mrs. Steve Regan, E. G. Morrissey. 

Mrs. Kincaid was not a resident of Alaska, but there is not suffi¬ 
cient evidence to establish how she voted. She says in her testimony 
that she does not know. 

Noay she declares she does not remember hoAv she A^oted. Her hus¬ 
band had just been on the stand and said he A'oted for Sulzer. No 
objection AA^as made by my attorney in any of these cases or sug¬ 
gestion they did not have to tell Avho they Amted for; but she said 
that she did not haA^e any recollection and, being a AA'oman that 
never liA^ed up there long enough to be entitled to a A^ote, probabl}^ 
she did not have enough interest to knoAv Avhat the issues Avere, or 
did not care. I have no doubt that she Avas telling the truth Avhen 
she said she did not knoAV Avho she A^oted for. And I have no doubt 
that she Avas telling the truth Avhen examined by Attorney Marshall 
(p. 121 of the record),, as folloAA^s : 

Q. You didn’t eousidei* the matter serious euoufth to jtive eoiisideration to?— 
A. We didn’t talk it over. IMy hu band phoned up for me, and after that AA'e 
didn’t talk about it. 

Q. What liaA'e been your political affiliations, if you had anj’?—A. I haven’t 
had any. 

Q. Had you iieA'er discussed the merits of this canipai^tn Avith any one at 
all or heard anythinji- about if?—A. No; nothing except Avhat I had heard about 
the 'Wickersham and Sulzer controA^ersy. 

(}. From AA’hat you heard about that controA'ersy, Avould you have any sym¬ 
pathy or prejudice aii.vAva.v’?—A. No. 

Q. Formed no opinion?—A. Formed no opinion Avhate\'er. 

Q. lUit you felt as an American citizen you ought to exercise your right 
to vote?—A. Ye-. 

Q. Fven if you did it blindly—didn’t you state to me at the time I took your 
affidavit, although you were not positiA^e, you believed for Sulzer?—A. I could 
not say that; I don’t remember. At the time 1 couldn’t say Avhich I voted for. 

(}. l>ut you told me you belieA’ed? —A. I don’t remember whether I told you 
that or not. 

Q. You read the aflidavit oA’er when you signed it?—A. Yes. 

Q. And you made, and I made for you, an addition to it?—Yes; I remember 
that. 

And didn’t 1 Avrite in with your consent that you believe you voted for 
Sulzer?—A. I think you did. 

CROSS-EXAMINATION. 

Q. ^ ou liaA’e no impression as to Iioaa" you did A’ote? — A. I couldn’t remember. 

Q. You do remember about that time Wickersham Avas a A'ery prominent 
name in Ahnka?—A. Well, I remember Mr. Sulzer aatis. too. 

Q. If Mr. Marshall had asked you if it Avasn’t likely you had Amted for Mr. 
Wickersham, you probably Avould make the same reply?—A. Well, I suppose 
I Avould; I don’t remember Avho I voted for. I couldn’t say. 


WICKEESHAM VS. SULZER (DECEASED) AND GRIGSBY. 213 

Her husband has just testified frankly that he voted for Sulzer, 
and she did not remember who she voted for. Noav, there is no legal 
presumption that a Avoman votes the same as her husband; and, in 
fact, lots of them do not purposely, and lots of them do not by mis¬ 
take. That does not apply to my case; my AAufe Amtes the Avay 1 do. 
But suppose, gentlemen, that this case got doAAm to a point AAdiere the 
decision rested on that one A^ote of Mrs. Kincaid. Wickersham’s 
attorney, Mr. ^larshall, AAdiom he employed to go out and get the affi- 
daAuts AA’hich are brought doAAU here for this ex parte proceeding, 
who AA^as employed through all the rest of the contest, comes doAvn 
there hunting evidence, as attorneys do, getting affidavits. If you 
gentlemen ever tried any mining laAvsuits, you knoAV Avhat that 
means. 1 ou get a lot of felloAvs in the office and get them on record 
in an affidavit. Here is an experience of an attorney trying to get 
an affidaAut from a AAmman to help him out; to secure evidence to seat 
a man in Congress; and the Avoman does not care anything about it; 
not interested in it; and he gets here to sign an affidavit that she be- 
lieA^es, and Avith her consent he Avrote in the affidavit, that she believes 
she Amted for Sulzer. EA^en then, not that she Avas sure—supposing 
she had gone on the stand and testified “ I believe I voted for Sulzer, 
but I am not positive.” That would be better eAudence than you ha.A^e; 
supposing she did that, and that Avas the one Amte that Avas to decide 
this contest. Would you unseat a man on that evidence and put an¬ 
other man in his place ? Hoav much less, when she is called as a Avit- 
ness she says she does not remember hoAv she voted, and her testimony 
is apparently truthful. 

Koav, Avhenever you consider one of these votes and pass upon the 
legality of it or the Avay it was cast, you can not do it carelessly. You 
can not say: ‘‘AVell, the indication is that she A^oted for Sulzer,” or 
“ The indication is that she Amted for Wickersham.” You can not 
say Avhich of these tAvo things is the most probable. Is it more proba¬ 
ble that she Amted for Wickersham or for Sulzer? You gentlemen 
are deciding the right of a man to sit in Congress, and you can not 
decide the case on a hair-line balance of probability. It has to be 
better, stronger evidence—more satisfactory evidence—to determine 
you decision in a case of this importance. 

Here is a woman, who does not remember hoAV she voted, inA^eigled 
into making an affidavit that she believed it Avas Sulzer. She never 
said she knew. So, with respect to this Amte, which you can not in 
justice and equity count for Sulzer if it is the determining vote; there¬ 
fore you can not count it at all, because you have got to treat each 
one of them just as though it Avas the determining vote. In respect 
to votes of this kind, I Avant to call the attention of the committee 
to be most careful, because I do not Avant to make this argument OA^er 
Avith respect to each one of them. I make it for this reason, because, 
Avith respect to the evidence there is here, if there is any evidence, to 
indicate how the woman voted, it is that she voted for Sulzer; but 
there is no evidence that she Amted for Wickersham, except she must 
have voted for one of the three. 

That is not enough. You can go to the jury in a laAVSuit with 
some evidence to indicate that the allegation of your complaint is 
right and true; but you have got to have enough to satisfy the 
judge to the extent that he will let it go to the jury; and if his was 


214 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


a property right—if you Avere determining title to land on evidence 
like that here—if you Avere determining the right of possession to 
a horse of a coaa’^, the judge AAmuld say: ‘‘This is not enough to go 
to the jury.” You may oaa’u this coaa^ (this AAmnian might have 
voted for Sulzer), but you can not take this coav out of the possession 
of one man Avho has the apparent right to it and put it into the 
possesion of another man on this kind of eAudence.” I do not think 
there can be any question about that. 

Mr. Chindblom. Is that affidaAut in evidence? 

Mr. (trigsby. Yes; but it is not properly in evidence; it is in evi¬ 
dence, but not in proper form. I think that Judge Marshall, Avhen 
he testified, offered the affidavit as an exhibit. In it she said that 
she believed that she voted for Sulzer, and if it Avas not in evidence, 
the evidence is here that she made it. 

That is Mrs. Kincaid. Noav, aa^c haA^e George A. Xix, avIio, the 
evidence shoAvs, Avas an Indian, and I Avill concede that the evidence 
shoAvs that he did not reside in the precinct for 30 days; and the 
evidence of one Avitness shoAvs that he rode doAvn to the polls in an 
automobile Avith Mr. Mahoney, and that his vote Avas challenged, and 
Mr. Mahoney assisted him to SAvear it in; and Mr. Mahoney Avas 
a supporter of Sulzer, and then the Indian took the ballot and Amted. 

Noav, the question is. Is the evidence sufficient to satisfy your 
minds that he Amted for Sulzer? The judge read some authorities 
here the other day to the effect that you are not confined to the testi¬ 
mony of the Avitness as to hoAV he voted, but you can take into con¬ 
sideration his preAuous political association, Avho assisted him in 
Amting, Avho challenged his vote, Avho assisted him in oA^ercoming 
the challenge, and all of that, and determine hoAv he Amted. In 
fact, in his remarks on that subject he almost tried to convince you 
that as a matter of laAV in this case you Avould have to accept the 
eAudence of the record, Avhether it is satisfactory to your minds or 
not. That, as a matter of laAv, you haA^e to accept it and determine 
hoAv people Amted. Noav, there Avas no authority held anything of the 
kind. There is no authority compels you to take any eAudence that 
does not convince you to a sufficient extent that you are Avilling to 
act on it in determining this important matter. So, you haA^e to take 
into account that the only Avitness that tesifies in his case of the 
Indian Xix, is a Avatcher for AYickersham—one of his Avatchers at 
the polls; he is his omnibus witness in this case, and he has contra¬ 
dicted himself. He might have been mistaken. He said that Yan 
Mavern came doAvn to the polls with Mahoney, and that Avas ques¬ 
tioned, and he immediately said “ I might have been mistaken.” 
And afterAvards Yan Mavern SAvore that he walked down to the 
polls from Ketchikan to Charcoal Point and Amted for Sulzer. 
I liaA'e conceded that he did. He is a high-class man in eA^ery re¬ 
spect. And this Althouse had preAUously SAVom that Mahoney hauled 
him doAvn there in his automobile. 

Xow, it is pretty hard punishment on you people to pass upon this; 
but you have got to read the eAudence in this case in regard to this 
man Nix; and you must read all of the testimony of Althouse in the 
case and decide what kind of a man he was, whether you can throw 
a man out of a seat in the House of Representatives on the testimony 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 215 

of an extreme partizan of the other fellow with reference to acts 
and circumstances which indicate how a third party voted; whether 
that is satisfactory evidence is something that will make you pause 
and consider. 

Now, there is other evidence that this man’s vote was challenged. 

I will admit that, and that he swore it in. He was challenged by 
this man Althouse, though; he was the man who challenged it, so 
that does not strengthen it, and the mere fact that a man’s vote was 
challenged, aside from other circumstances, does not prove how he 
is going to vote. Any tribunal that ever decided that it did must 
have been looking for something to decide the case on. 

Mr. Hudspeth. In your judgment, how many Republicans in 
Alaska failed to vote the straight Republican ticket? What per 
cent? 

Mr. Grigsby. Well; I will answer that question this way - 

Mr. Hudspeth (interposing). And how many Democrats failed to 
vote the straight Democratic ticket ? 

Mr. Grigsby. Oh, I will tell you; we voted for a Delegate to Con¬ 
gress in that election and four representatives and one senator from 
each division, and a road commissioner, and the personal friendship 
cut a whole lot of figure, and there would be a very large per cent 
might scratch one or two names. It would be impossible for me to 
estimate. I think it would be very large. 

Mr. O’Connor. How many voters voted in the primary for Siilzer? 

Mr. Grigsby. Over 3,000. 

Mr. O’Connor. How many voted for Wickersham in his primary? 

Mr. Grigsby. Why, just a few hundred; less than a thousand. 
How many Judge? 

Mr. Wickersham. I have no idea. Is there a record of that? 

Mr. Grigsby. Yes. There was no contest; you see, the contest was 
in the other primary, and it was very bitter. 

Mr. Chindblom. Did Sulzer have a primary contest ? 

Mr. Grigsby. Yes; the Wickershamites put up a man to beat him 
in his own primary. 

Mr. O’Connor. Is there any way of ascertaining definitely the 
exact number of votes that were polled for Sulzer in the Democratic 
primary, and for IVickersham and his opponents in the Republican 
primary ? 

Mr. Grigsby. It could be ascertained by wire. 

Mr. Chindblom. You elected members of the legislature at the 
same time ? 

Mr. Grigsby. Yes. 

Mr. Chindblom. How many members of the legislature were 
elected ? 

Mr. Grigsby. Eight members of the—the 16 members of the house 
were all elected; they are elected every tAvo years, four senators and 
all the representatives—but there are only four members in each 
division; no man can vote for but four members of the house and 

one senator. . . , , . i • 

Mr. Chindblom. What was the political complexion of the legis¬ 
lature as the result of that election? 

Mr. Grigsby. The house was Democratic, according to the political 
affiliation of its members, as they ran in the election. And it had a 



216 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

working majority that we would call Democrat members of about 
9 to 7. The senate was Demo(;ratic, according to the election, but 
some were Wickersham Democrats. The politics of Alaska are 
Wickersham and anti-Wickersham, politically. 

Mr. O’Connor. What do you call a Wickersham Democrat? 

Mr. Grigsby. AVell, it is in the record; Wickersham was nomi¬ 
nated by a Democratic convention in 1914- 

Mr. Wickersham (interposing). Do not state that to the com¬ 
mittee. 

Mr. Grigsby. IVhat year was it? 

Mr. IVicKERSHAM. I never was nominated in a Democratic con¬ 
vention in my life. 

Mr. Grigsby. At Valdez? 

Mr. IVicKERSHAM. No, sir; I was not. The Valdez convention 
passed a resolution commending me for my services in securing the 
Alaska Eailroad, and so on, but that was all. 

Mr. Grigsby. Well, that is his statement, but when I come to it I 
will make- 

Mr. Wickersham (interposing). Well, it is in the record. 

Mr. Grigsby. Yes; 1 know; but I can come to that; I was not going 
to discuss that. Judge, but since you have I will go into it. I think 
it is a credit to you. I think you ought to be proud that you were 
nominated by any kind of a Democratic convention. 

Mr. Wickersham. Well, I have never complained about it, have I? 

Mr. Grigsby. Well, you are denying it, you know. 1 am astounded 
at you. 

I was discussing this man Nix. Now, he is an Indian, too, and we 
have got this Australian ballot; and he came down there and accord¬ 
ing to the testimony of Althouse was in Mahoney’s automobile. Now, 
it is a half mile from Ketchikan to Charcoal Point, and there is a 
board walk; the people of Charcoal Point are really in the town of 
Ketchikan, as far as their business dealings are concerned. It is a 
the place where they hang about—the hotels are all up in Ketchikan, 
but Charcoal Point is just outside of the limits, so that the United 
States commissioner has to appoint the judp-es down there. On elec¬ 
tion day there are a great many automobiles running up and down 
the street all the time. 

Mr. O’Connor. These two polling places were within a half mile of 
each other ? 

Mr. Grigsby. Yes; and the testimony shows that Mahoney’s auto¬ 
mobile was going up and down there all day. There were not a 
hundred votes cast at Charcoal Point, but according to the testimony 
of the Wickersham witnesses in this case Mahoney must have carried 
over to the polls more people than the vote cast in Charcoal Point. 
Otherwise you can not account for the amount of gasoline he burned 
that day. And up in Anchorage this testimony shows they had two 
or three automobiles running all day, and that is against the law, too, 
of Alaska, to use automobiles or other conveyances to carry voters to 
the polls for the purpose of influencing their vote. It does not vitiate 
the vote, but the offender, if convicted, can be fined for doing it. 
But you gentlemen, with the experience you have had in elections, are 
you going to presume that a man voted in any particular way be¬ 
cause he rode in any particular conveyance? Sometimes it is to your 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 217 

interest to get out all of the voters; to get them to the polls. You say, 
“ Boys, \ye can win if we get all of the votes out.” 

Mr. O'Connor. Whoop them up ? 

Mr. Grigsby. Certainly. Have not you done that? You gentle¬ 
men are not going to throw anybody out of a seat in Congress because 
Mahoney hauled this fellow or that fellow to the polls. 

If you read Althouse’s testimony, you will see that he is one of 
those peculiar geniuses who goes to an election and hangs around 
there, and when a lawsuit comes up he is the main witness in the 
case—a very reckless witness, a very eager witness. His testimony is 
the thing to read; and I w^ant you to read it. I want you to pass on 
Nix. One of the reasons that Judge Wickersham has made so many 
contentions in this case, and filled up this record Avith a whole lot of 
stuff that is immaterial, is to make it hard to read. You have seen 
that Judge Wickersham is a genius at making out his own case, and 
his argument, Avhere he comes to the facts and is able to state his 
view of them, is quite plausible. He relies on you to take his state¬ 
ment of the facts as true and hopes that you will not look them up for 
yourself. And the bigger the record is, the harder it is for you to do 
it. And I earnestly ask this committee to study this record, and to 
study it carefully, before they render a decision in this case. The 
more you study it the better it will suit me. 

Mr. WiCKERSHAivr. Well, I agree with you about that, too. 

Mr. Grigsby. The next Avitness is Bert Heath. That is, the next 
one that I do not concede. His father was a legal voter there in 
Charcoal Point, and I liaA^e not been able to find that the records 
show hoAv old young Heath Avas, but he left home some years before 
the election, Avas gone four or five years, and, I think, returned to 
Ketchikan about July before the election. The question is whether 
he lost his residence. There is no evidence as to whether he did or 
not, except that of his father, and his father testifies, on page 124 
of the record, on cross-examination: 

Q. And your boy, Bert—I presume your home is your boy’s home? 

Mr, Heath. That is all the home he has—with me. 

Q. And that was his residence? 

And his answer was: 

The only residence he had. 

And then he was asked: 

And his residence had been Ketchikan for four or fiA^e years?—A. Yes. 

Now, I would not make much argument to contend that this man 
was a resident in Ketchikan or that he was not. He was aAvay—if a 
boy is aAvay before his majority, his domicile is the domicile of his 
father. That is the rule. And if he is away after his majority, he 
can be aAvay for any length of time he chooses, as a traveler, and 
if he does not acquire a residence elsewhere and intends to maintain 
the one he already had, he does not lose it. So the mere fact that he 
was gone does not establish that he lost his residence. But aside 
from that, there is no evidence as to how he voted. Mr. Heath says 
he does not know. 

Mr. O’Connor. Do I understand correctly, that during the boy’s 
minority his domicile is that of his father ? 

Mr. Grigsby. Yes. 


218 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Mr. O’Connor. If he goes away during his minority and is away 
when he reaches his majority, and does not declare otherwise, he still 
continues to have his domicile with his father ? 

Mr. Grigsby. He does not have to declare, unless he acts otherwise. 

Now, further than that there is no evidence as to how he voted, 
except that the old man, Mr. Heath, said he thought the boys all 
supported Sulzer, but he says positively that he does not know. 
There is no evidence that he talked with him about it, or that any¬ 
body talked to him about it, and finally it is brought out that some 
of his family did not support Sulzer. 

Mr. O’Connor. Did not? 

Mr. Grigsby. Did not. And it is brought out that he, himself, was 
peeved at the Democratic organization because he did not receive 
the nomination for the legislature in the primary, and he finally 
refused to swear positively that he himself voted for Sulzer. 

Mr. O’Connor. Mr. Grigsby, if you will pardon me for asking the 
question- 

Mr. Grigsby (interposing). Certainly. 

Mr. O’Connor. But I was not exactly clear on your answer to the 
interrogatories of Mr. Chindblom. Were the delegates of the terri¬ 
tory of Alaska elected at the same time that your primary and Mr. 
Wickersham’s primary was held, or at the time of the general elec¬ 
tion ? 

Mr. Grigsby. The primaries are all at the same time. 

Mr. O’Connor. When were the members of the legislature elected? 

Mr. Grigsby. The same time as the Delegate; November 5, 1919. 

Mr. O’Connor. How many representatives in that legislature? 

Mr. Grigsby. Four in each division, and two senators. 

Mr. O’Connor. How many does that make, as a total ? 

Mr. Grigsby. Six from each division. 

Mr. O’Connor. As a total, throughout the territory ? 

Mr. Grigsby. Twenty-four; but there are only four senators elec¬ 
ted each election. 

Mr. O’Connor. Four senators and 20 delegates? 

Mr. Grigsby. Sixteen representatives and four senators elected each 
time. 

Mr. O’Connor. How many of those elected at that election were 
Democrats and how many Kepublicans, of the total legislature? 

Mr. Grigsby. Well, nine and five Avould be 14 Democrats- 

Mr. O’Connor. Fourteen Democrats out of how many, as a total? 
Out of 20? 

Mr. Grigsby. No; let us see. I am counting the hold-overs, too. 
You see, there were four senators held over. I would have to sit 
down and think a minute. 

Mr. O’Connor. I wish you would get that in the record, the num¬ 
ber of representatives and senators elected at the election in which 
Sulzer and Mr. Wickersham ran. 

Mr. Grigsby. Well, there w^ere nine members of the house. Demo¬ 
crats. 

Mr. Hudsreth. They were elected? 

Mr. Grigsby, Yes; at the same time Mr. Wickersham and Mr. 
Sulzer ran. 

Mr. O’Connor. How many Republicans? 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 219 


IVIr. Grigsby. Seven in the house, and in the 
Democrats elected. 


senate there were three 


^Ir. Hudspeth Three Democrats, senators, and one Republican? 

T Republican; I can not remember who he was. 

1 think he did not amount to much. ' 

Mr. O’CoxxoR. I wanted to know the number. 

Mr. (iRiGSBY. It would be 12 Democrats to 8 Republicans. 

Air. () CoxxoR. 1 wanted to know the number. Xine Democrats 
veie elected at that time as representatives, and seven Republicans; 
tliree senators. Democrats, and one senator, Republican. Now, I 
understand. 

Mr. (trigsby. Here is the evidence about how this bov voted; paffe 
123 ot the record: . ^ i ^ 


Mr. Heath, is it not true your family all supported IMr, Sulzer, did they 
not ? 

That is a rather leading question. 

A. I do not know; I did. 

Q. Well, don’t you know whether members of youi- family voted or talked 
In support of him? 

And he answered: 


I felt luetty well satisfied they were goinj? to support him. 

Q. You talked with them frequently?—A. They talked that way. 

Q. Including Bert?—A. Yes. 

Bert is the one in question. 

Q. Have you any doubts that all did vote for him?— A. I am pretty well 
satisfied they did; all my sons and daughters, excepting one; I doubt whether 
Mr. Lloyd and his wife did. 

Q. You don’t think Mr. Lloyd did?—A. I think not. 

Q. But you think all the rest of your family that did vote voted for Mr. 
Sulzer, including Bert?—A. Yes. 

Cross-examination: 

Q. You are not very certain of that, IMr. Heath, that they voted for 
Sulzer?—A. I have no way of thinking so except their talk; they didn’t tell me 
how they voted. 

Q. If you hadn’t been a rock-ribbed Democrat you wouldn’t have voted for 
Sulzer the last election yourself?—A. Well, I couldn’t say that Charlie—I liked 
Charlie Sulzer pretty well as a man. 

Q. At that time you were pretty sore at your treatment by the Democratic 
organization?—A. Well, I was, a little before, .sore. 

Q. And for that reason you made no effort in Sulzer’s behalf?—A. No. 

Q. The reason, now, you voted for Sulzer?—A. To the best of my recollection. 

Q But you are not certain of it?—A. Yes; I feel pretty certain. 

Q. Not dead certain—are you prepared to swear now that you did vote for 
Charlie Sulzer, feeling how you recollect you did feel sore over the treatment 
you had received? 

.Tudge WiCKERSHAM. I object to counsel’s testifying, although he does a very 
line job of testifying. 

Mr, Heath. I think I wouldn’t have to swear I voted for him. 

He did not say he would not like to, according to the transcript. 
He says: 

I think I wouldn’t have to swear I voted for him. 

He says he has no doubt about it before that, and he says he did 
nothing in his behalf. 

Q. You felt sore because you hadn’t been nominated as a member for the 
Territorial legi.slature on the ticket as promised?—A. I didn’t feel sore about 
that. 


220 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Q What (lid you feel sore about?—A. I don't think T felt sore. I don’t 
mind telling you that I didn't think that the Ketchikan Democrats, any of 
them, were getting what they ought to get; I thought they were hogging it all 
in other localities. 

Xow, here is a man that certainly Avas sore, and he is a Wickersham 
Avitness, and he Avill not sAvear he A^oted for Sulzer himself. Here 
is a Democrat refused a nomination in the primary, and he is sore 
enough, so he is a Wickersham witness. Wickersham does not put 
any Avitnesses on the stand until he knoAA^s Avhat they are going 
to testify to. Pie is friendly enough to Wickersham that he comes 
to him, or to his attorney, prepared to go on the stand against 
Sulzer and giA^e eAudence that from the general talk he thought Bert 
Heath Amted for Sulzer, though Bert neA^er told him so. He AA^ants 
you to throAA" that A’ote out. Noaa^, that is not an unfair presentation 
of the facts. Those are just a feAA^ of the circumstances that I haA^e 
to argue to you gentlemen as if you were a jury discussing the eAu- 
dence of the Avitnesses in a civil suit as to Avhere a stake Avas and you 
liaA^e to analyze it. So, you see, you have a fine job ahead of you, 
because I can not begin to analyze the testimonA’ in this record. Pdie 
chairman has talked about taking the strings off on time. I now 
want to tell him it is a good thing he put some kind of a limit on, 
because I aa ould feel it my duty to analyze eA^ery bit of this evidence 
to the utmost of my capability. At that, I Avill cut it as short as 
possible. 

There is Bert Heath. That is the third doubtful Amte disposed of. 

We now come to J. C. Cochran. Pie was the lighthouse keeper at 
Lincoln Bock, and a Federal employee, and there is no evidence in 
the record as to in what precinct Lincoln Lock is, if it is in any 
precinct, except some evidence of one Avitness that he thought it was 
closer to the toAvn of Wrangell than to Ketchikan, Avhich Avould not 
necessarily put it in that precinct. A place can be closer to a toAvn 
in one precinct than to a toAvn in another precinct and still not be 
in the former precinct. There is no testimony as to what precinct 
Lincoln Rock is in. But it does not make any difference. The testi- 
money is that this man Avas a Federal employee, stationed at a light¬ 
house, and Avhen he got his appointment he had to give his residence, 
and he gaA^e it as Ketchikan, and he came back to Ketchikan and 
offered to vote, Avhich Avas the only place he could have voted, if he 
Avas entitled to vote anywhere, and his vote Avas challenged, and in¬ 
stead of sAvearing it in—Avhether he did not know Avhether he had a 
right to or not—^he Avent doAvn with the rest of the voters to Charcoal 
Point and voted there. Now, he did not haA^e a vote there, but he 
did haA^e a right to vote in Ketchikan, and this election committee 
in the 1916 contest hold that if a legal voter goes up to the polls and 
is denied the right to vote that the committee can count it. Now, it 
is counted already, at Charcoal Point, so your action Avould have to 
be either to leave it as it is or throw it out. But if he had not gone 
to Charcoal Point and voted you would have had the right to count 
it at Ketchikan. There is no satisfactory evidence as to hoAv he 
voted. 

Noav, here is a Jew tailor. That is not a man’s name. This man 
Althouse testifies about another man that he says he thinks was a 
tailor from Seattle. He thinks he is a JeAv or Slovene, he does not 
knoAv Avhich, and that he Avas doAvn there with the bunch and voted 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 221 

at Charcoal Point; and he had never seen him anywhere except in 
Uie town of Ketchikan, and he did not know where he ate or slept. 
He does not say how long' he had been around there, and there is 
no evidence in the record of anybody else that knows this individual, 
that I know of. He just comes and grabs another one. 

ibere was another guy down there. I don’t know where he ate or slept; I 
never saw him any place except around the town of Ketchikan. 

There is where everybody goes in the day time- 

Mr, Hudspeth (interposing). Whom did he vote for? 

Mr. Grigsby. Nobody knows; but he is supposed to have been 
hauled down there with the rest of them in an automobile. The tes¬ 
timony of Althouse is so long- 

iMr. Hudspeth (interposing). Did Mr. MTckersham get any votes 
at Charcoal Point? 

Mr. Grigsby, les; the result was practically even at Charcoal 
Point. The result at Charcoal Point was: Sulzer, 45; AVickersham, 
42: Connolly. 8. And the town of Ketchikan. Mr. MTckersham car¬ 
ried by about 91 votes. 

Now, this tailor, this fellow that he said was a Jew (p. 137 of the 
record) : 

Q. Did he live in the Charcoal Point precinct?—A. I never saw him only 
around Ketchikan. I don’t know where he sleeps and eats; I never saw the 
man in the Charcoal Point precinct. 

Q. You were well acquainted out there?—A. Around back and forth every 
day. 

Q. And knew the people?—A. Yes, sir. 

Q. Did he reside there?—A. No; he didn’t. 

If he does not know where he eats or sleeps, how does he know 
where he resides? Charcoal Point is a bunch of buildings, strung 
along a point for a mile or two, and back up on the hill, and those 
people u^D there in Alaska who are not married, those men going up 
there to seek a fortune one way or another, are liable to go and bunk 
with a friend or to rent a cabin and buy some bacon and beans and 
keep batch: and when the fishing season is over they go and sit 
around in the hotels and play solo. That is the only place they have 
to go—when the saloons were there they kept open all night, and 
provided a place for the unfortunate prospector; but since we have 
had prohibition those fellows have had to go somewhere, and they 
hang around the hotels or go home. And this witness did not know 
the fellow’s name or where he ate or slept. 

Now, again, I do not know what the evidence is about how “ that 
fellow ” voted. Althouse testified that he was brought to the polls 
by Mahoney in an automobile; but his testimony is reckless about 
Mahoney, toward whom he Avas A^ery unfriendly. The testimony 
shoAvs that Althouse Avas picking on Mahoney on eA^ery conceivable— 
on eA^ery possible occasion. Noav. there you hav^e the evidence. Here 
is a felloAv that may not have existed. 

There Avas another man. A Jew, I think he was a tailor from Seattle, comes 
down there with IMahoney and the rest of them in the machine, and he Amted. 
I neA’er saw him in Charcoal Point, the only place I ever saw him was Ketchikan, 
I don’t know where he eats or sleeps. 

MT do not knoAv enough about “ this felloAV ” to make it possible 
for us to find him and contradict this evidence. 




222 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Now, here is AVickersliam’s watcher brings in this “ felloAv.” Sup¬ 
posing he had brought in enough of this kind of people to change the 
result. Supposing he had said Mahoney hauled down 20 in all; that 
he ncA^er saAA^ anywhere else than Ketchikan and don’t knoAv where 
they ate or slept. “Did they reside in Charcoal Point? No; they 
don’t.” That is a conclusion, of course. “ No; they don’t.” That is 
not testimony. You can not take a man’s testimony in a case of this 
kind to the conclusion. Noay, I submit that this is not the kind of 
eAudence that you can act on in this case—this evidence Avith ref¬ 
erence to the tailor. 

Noaa', this W. Chapman sAvore in his Amte in Ketchikan. The wit¬ 
ness, blunt, AA’ho AA^as either one of the Republican judges at Ketchi¬ 
kan, where the city council appointed the judges, or it Avas his son— 
both ardent Wickersham supporters—testified that Chapman was a 
superintendent for the Salt Chuck Mining Co. Hoav long he had 
been a resident of Alaska the cAudence does not disclose, except that 
he SAAmre in his vote when challenged. 

Noaa^, here is a man AAdio lives in Alaska, and AAdio is a man of suffi¬ 
cient responsibility so that he is made the superintendent of a mine. 
It is situated out in AAdiat you gentlemen AAmuld say Avas out in the 
country. It is off across the AA^ater, on an island. Hoaa^ long he has 
been a resident of Alaska the eAudence does not shoAV. And the only 
evidence that he voted for Sulzer is the evidence of Hunt, a strong 
AYickersham supporter. The record (p. 84) sIioaa^s: 

Q. Did he have an.v residence here?-—A. I don’t consider so. 

Q. He was challen.i>-ed?—A. Yes. 

Q. What became of his challenge?—A. He swore in his vote. 

Q. Do yon know where his residence was?—A. I think he could claim a 
residence out to the mine; I understood he had a house built out there at the 
mine at Kansaan. 

Q. Did Mr. Chapman have a wife here in the hotel at that time?—A. He did. 

Q. What was she doing here?—-A. She Avas said to be here for medical treat¬ 
ment ; she wasn’t well. 

Q. But his home was over at the mining claim; they had a residence over 
there?—A. I understotHl the company furnished a house, just a residence for the 
superintendent, there. 

So that he Avould be oA^er there, and could be OA^er there, at the 
mine as superintendent without any intention to stay there, except 
as far as the performance of his duties Avas concerned, and he might 
retain his legal residence in Ketchikan, if he did not intend to 
abandon it; and there Avas no other place he could Amte, and he SAVore 
in his Amte. The presumption is ahvays in faAmr of the legality of a 
Amte. That is the general rule, and I think if you gentlemen apply 
the general rule in this case you can not throAv out that vote. That 
is no evidence, anyAvay, that he did not liv^e in Ketchikan or as to 
hoAv he voted. 

As to William Semar and his Avife, there is not any evidence as to 
hoAv they Amted and very unsatisfactory evidence as to Avhether they 
liA^ed in Ketchikan or not. He ahvays had lived in Ketchikan, and 
the same Hunt, this AVickersham supporter, says that he Avas a resi¬ 
dent of Ketchikan, but he had sold out his residence there about tAVo 
years prior to the election and Avas interested in a cannery out at 
Sitka. Noav, there are a Avhole lot of people in Ketchikan interested 
in canneries, and they get interested in canneries and locate canning 
plants off someAvhere aAvay from anybody and are there during the 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 223 

fishing season leave a watchman there during the winter—and they 
may spend the winter in Ketchikan, or, if they make enough money, 
they may go to Europe; and they may sell their house—you can even 
sell your house and retain your residence, and travel in Europe, or 
they may rent their house; selling or renting your house does not 
anect your residence. This man is a substantial business man in 
Ketchikan; had no house in Ketchikan at that time. Now, here is 
the evidence, the strongest evidence there is against his right to vote: 

Q. A\ hat about William Semar?—A. Ho was a resident of Ketchikan, but 
he bail sold out his residence here about two years prior to election and was 
interested in a cannery out at Sitka. 

Q. Did he have any residence here at that time?—A. No. 

Then, this is my note: 

The witness undoubtedly referred to a dwelling house and not to a legal resi¬ 
dence. 

Q. How long prior to that time had he been a resident here?—A. In the neigh¬ 
borhood of two years. 

Q. They were in this early group that voted?—A. Yes. 

Q. Did he have any home here or place of residence?—A. No home. 

Q. How long had they been here prior to the date of election?—A. A few 
days. 

Q. Not 30 days?—A. No. 

Now, imless this man has abandoned his residence in Ketchikan 
and acquired one elsewhere, he is entitled to vote in Ketchikan. And 
you are to determine from the evidence whether that is sufficient to 
throw out that vote, if you can find out how he voted; but there is 
not any evidence as to how he voted whatever, that I have been able 
to find in the record. I do not know why this testimony was taken; 
so I do not want you to overlook that. 1 have found no evidence as 
to how Mr. and Mrs. Semar voted. 

Now, we come to Gus Gillis and his wife, and the contestant made 
quite a show of fairness with reference to Gus Gillis and his wife, 
and stated that he would not insist on raising any question about those 
votes, and showed you a letter from Gus Gillis, who lives in Nome. 
He is a traveling man and lives in Nome. Now, Gus Gillis did not 
vote in Ketchikan, and I showed it up in the examination at Ketchi¬ 
kan, and Mr. Wickersham conceded that he was mistaken in making 
that contention, but makes it again in his brief. But there is no use 
in talking about it. 

Mr. Wickersham stated in his argument the other night that he 
would not contend that the votes of Gus Gillis and his wife should 
be deducted from the Sulzer vote. So, although he has that in this 
list, they are to be ignored by you. They did not vote at Ketchikan. 

Mr. MTckersham. If the record shows they did vote at Ketchikan, 
then, of course, my objection would be good; but I said I am in so 
much doubt about it- 

Mr. Grigsby. Well, if the record shows that Gus Gillis and wife 
voted at Ketchikan, then you have no evidence whatever that they 
did not live there. 

Mr. Wickersham. Oh, yes; I have. 

Mr. Grigsby. No; you have not. You have stated that the only 
Gus Gillis and wife that could have voted illegally lived in Juneau. 
Now, where does the other Gus Gillis and wife live? You have not 
a leg to stand on either way. 



224 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Now, Steve Re^an is deputy United States attorney at Ketchikan; 
had been doAvn there over a year before the election and rented a 
house for his family. He lived up at Haines on a homestead. Steve 
was actually and physically there, living in a rented house for nearly 
a year before the election, and left his wife and children up on the 
homestead. They came down once or twice and visited and went 
back, and came back shortly before the election, not 30 days, tliough, 
the last time; but they were there and voted—his wife did, and him¬ 
self. And the judge wants you to throw out those votes on the theory 
that if you do not do it that Mrs. Regan may lose the homestead. 
Mr. Regan has since been murdered in Ketchikan. 

Now, Mr. Regan—I do not know on what possible theory he con¬ 
tends that Regan’s vote was illegal. He was there, and rents a house 
and lives in it, and does every act and thing he can, and says it is his 
home, and rented a house for the purpose of moving his family into 
it. And the law does not j^revent him from abandoning a home¬ 
stead if he desires to, but under the law he does not abandon his 
homestead by leaving it. After he has resided on it three years 
continuously he has a right to leave it and obtain a residence some¬ 
where else, provided he continues the cultivation of it. I have an 
opinion here from the Commissioner of the General Land Office in 
which it is stated: 

As a general proposition I have to advise yon that where a homestead entry- 
man complies with three-year law fully and then lejives the land for an ex¬ 
tended perioil. he is not precluded from subsequently making proofs within the 
statutory period, and he may do so although he has resided elsewhere, provided 
he continues to cultivate the land during his absence. 

So there is nothing inconsistent with ]Mr. Regan acquiring a legal 
voting residence at Ketchikan and preserving his homestead right 
at Haines. And even if there were, in this proceeding you could 
not presume that he maintained his homestead residence and did 
not intend to reside at Ketchikan. He testifies that he complied 
with the law in 1917, that he had so fulfilled the homestead require¬ 
ments. He testifies that he had established a residence at Ketchikan, 
and that is his home; that is the home of his family. That is the 
testimony in the case, and he was actually there, in a rented house. 
So you can not throw out those votes on the theory that Mr. Wicker- 
sham advances that possibly Mrs. Regan may be put out of her 
homestead. He says that the wife’s residence always follows that 
of her husband- 

Mr. MTckersiiam (interposing). No; I did not say that. In this 
case I said just the other thing. 

Mr. Grigsby. You said it was a general proposition. You say 
even that Mrs. Donald H. Tver—noAv, there is a Avoinan Avho lives 
in Yaldez—lived in Valdez for five years, continuously up until 
November 1, 1918; for five years continuously she resided in Valdez. 
Then she married a soldier, who enlisted from the State of Iowa, 
and Mr. Wickersham contends that she thereby lost her vote, because 
her residence folloAved this soldier’s back to the State of loAva, 
although she had neA^er been there. Now, Mr. IVickersham can not 
bloAv hot and cold Avith this committee. When he advocates that 
kind of a doctrine in one case he can not SAvitch around and advocate 
another kind in another case. 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 225 

Now, if the wife’s residence follows the husband in any case, it 
should be where the husband comes down to a town and rents a 
house, not a room, but a house for his family to live in, and has 
them come down there, and says he intended that that is where they 
should live; that is the home. She not only constructively follows 
his residence, but she actually came down there, and then went back 
during the summer to Haines, where they had the most delightful 
climate in the world, and grow the biggest strawberries—nice, bright, 
sunshiny weather, as everybody knows. A wife and two or three 
children went up there in the summer in preference to staying down 
on the water front in Ketchikan, where it rains all the time. Except 
for the fact tliat that is a very prosperous town and has very good 
people in it, it is a very disagreeable climate and place to live. 
Now, none of that is inconsistent with her residence in the town of 
Ketchikan. 

Now, that disposes of all of these alleged illegal votes which I 
dispute. I have conceded 10 and I have disputed 13—that is, in 
southeastern Alaska—in the Ketchikan precinct. Now, there are 
a few up around Juneau. The only one of them that I want to 
dispute is E. G. Morrissey- 

Mr. Chtndblom. How many are there at Juneau? How many 
were challenged there in Juneau by Mr. Wickersham? 

Mr. Grigsby. There are seven. Those votes—the testimony was 
taken at Juneau, but the votes were cast at various precincts, and 
this comes under the head of “individual frauds in southeastern 
Alaska.” 

Mr. Chindblom. But of these seven you now dispute only one? 

Mr. Grigsby. Those 7 were included in the original 23. There 
are 23 alleged frauds in southeastern Alaska; Charcoal Point, 
Ketchikan, and other places, 23 altogether, and I have conceded 
10 out of the 23. Now, there are 7 more that I have not dis¬ 
cussed of those 23, and 6 of them are those that I have already 
conceded, and 1 of them is the one I dispute. 

Mr. Hudspeth. Under what head do they appear in Mr. Wicker- 
sham’s list? 

Mr. Grigsby. “Individual frauds in southeastern Alaska.” 

Mr. Doweld. But those 6, they are 6 of the 10 that you concede? 

Mr. Grigsby. Yes; there is a difference between us of 13. E. 
G. Morrissey was Sulzer’s private secretary. He was a legal resident 
of Fairbanks, formerly, and was outside with Mr. Sulzer, and went 
back during the campaign and rented a room in the hotel, and was 
there several months before election, but not all of the immediate 
30 days immediately prior to the election, but got back in time to 
vote at Juneau. He was there—the evidence shows, the evidence of 
Mr. Bartlett, that he kept his room at all times in the hotel, did not 
give up his room at all. I do not want this to be considered in the 
case at all, but I know that he did, because I roomed across the hall 
from him. That does not make any difference; it is not necessary 
that I corroborate it. The hotel keeper says he did not give it up. 
I know that he was away, only by hearsay. It is conceded that he 
went away for a while, out in other portions of the division, but I 
do not know how long he was gone, and the record does not show, 

181744—20-^15 


226 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

that I knoAv of. I Avent up to Fairbanks, and I lost my vote, but 
Morrissey got back to Juneau and voted. 

Now, Avhen you come to consider this case you have to consider 
that that may be a deciding Amte. Now, Sulzer has already lost his 
OAvn Amte. We haA^e conceded that. Now, is the secretary to lose his 
A^ote, too ? On a strictly technical construction of the statute ? The 
(question is, did he have a legal residence sufficient for voting pur¬ 
poses in the precinct he had been in, in which he had a residence? 
He had rented a room which he Avas paying for during all the time, 
for several months prior to the election, Avith the exception of a feAv 
days during the 30-day period. I A^enture to say, gentlemen, that a 
seat in Congress should not be disturbed on account of a man receiv¬ 
ing a vote of that kind—a legal vote in every particular. Supposing 
he had not had a residence there at all, then you would haA^e to deter¬ 
mine whether this Territorial law is good or not. But now, we are 
arguing on the proposition that if a Amte is in the Avrong precinct 
the vote is to be discredited. Now, here is Morrissey, who does go 
there and establishes a residence in that precinct—which you can do 
by stopping at a hotel—rented his room by the month, kept it up 
until after the election, and Avas gone a few days within the 30-day 
period. I do not think you will haA^e much trouble with that in¬ 
dividual A^ote. 

That disposes of all the individual alleged illegal votes in south¬ 
eastern Alaska. The next subject- 

Mr. O’Connor (interposing). Before you go on, what other offices 
besides the members of the Territorial legislature and the Delegate 
to this Congress are elected by the people of Alaska ? The attorney 
general, as I understand? 

Mr. Grigsby. Yes. 

Mr. O’Connor. Is that the only one ? 

Mr. Grigsby. Road commissioner. 

Mr. O’Connor. When is the attorney general elected? 

Mr. Grigsby. Every four years, at the general election. 

Mr. O’Connor. Was he elected at the time that Sulzer and Wick- 
ersham ran for Congress, and Avhich case is now before this com¬ 
mittee ? 

Mr. Grigsby. No, sir; there was no election of attorney general 
then, because it is a four-year term. I was the first attorney general; 
the legislature created the office of attorney general, and my term 
would have expired next March. 

Mr. O’Connor. The road commissioners are elected in the political 
subdivision ? 

Mr. Grigsby. Yes; in the judicial diAusion; they are called road 
diAusions. 

Noav, I am going to discuss the Cache Creek proposition. You 
will remember what the Cache Creek proposition was. The polls, it is 
alleged, were opened before 8 o’clock in the morning and most of the 
votes cast before 8 o’clock; that is the allegation. There is no alle¬ 
gation of fraud, and Mr. Sulzer carried the precinct, I think, by a 
vote of about—a majority of 23 or 25. Now, Mr. Wickersham says 
in his brief: 

The undisputed testimony of all witnesses called shows, without any denial 
or exception on Mr. Grigsby’s part, that the ballots were deposited in the box 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 227 


bet^yeen the hours of 4 n. lu. and 5.15 a. in., at which hour the voters left the 
polling place, some for Seattle and others for other distant points in Alaska, 
and all were out of the Cache precinct before 8 o’clock. 


That is his version of the evidence; that the undisputed testimony 
of all Avitnesses sIioaa^s those things, Noav, if you Avill read the evi¬ 
dence of all the Avitnesses—there Avere six, I think, you Avill find that 
he is AA^rong in these respects in that statement; the undisputed testi- 
money of all Avitnesses does not shoAV that the ballots Avere deposited 
in the box betAveen the hours of 4 a. m. and 5.15 a. ni.; it does not 
shoAv that at that hour the voters left the polling place; it does not 
shoAv that some Avent to Seattle and other distant points in Alaska, 
and it does not sIioav that all Avere out of the Cache precinct before 8 
o’clock. There is no eAudence, except of one Avitness, as to Avhat time 
these polls did open, and he Avas not a citizen of the United States, 
and did not vote, and there are other Avitnesses avIio testified, and the 
gist of their testimony is that the polls may have been open earlier 
than 8 o’clock in the morning. 

Mr. Elliott. Mr. Grigsby, did you get any testimony along that 
line, as to Avhen these polls did open, or try to get it ? 

Mr. Grigsby. Why; I did not. 

Mr. Elliott. Why did you not? 

Mr. Grigsby. Why; I did not personally. Personally, I never saAV 
this evidence until it came doAvn here in the shape that you gentlemen 
saAv it in the record. 

Mr. Elliott. This aa as taken by v^ay of deposition, aa as it not ? 

Mr. Grigsby. Yes. 

Mr. Elliott. And Avas not notice served on you ? 

Mr. Grigsby. On my agent, yes; but personally, I did not knoAV 
anything about it. 

Mr. Elliott. Did you have anybody present at the taking of these 
depositions ? 

Mr. Grigsby. Yes. 

Mr. Elliott. Did they make any attempt to get any other evidence 
than Avhat Wickersham forces in here? 

Mr. Grigsby. Not that I knoAV of. I suppose that they took the 
evidence and sized it up and considered that it Avas probably a com¬ 
plete account gf the transaction. Here are six Avitnesses, none of 
them charged Avith being disreputable, testify to the circumstance, 
and I do not think the votes are in dispute, except by Mr. Wicker- 


Mr. Elliott. Who Avere on the election board at that time ? 

Mr. Grigsby. I have the names, but they are not in the record. 

Mr. Elliott. Was it not possible for somebody to get a statement 
from these men AAdio did hold the election, as to Avhat time they 

opened and closed the polls ? , x i t i 

Mr. Grigsby. I should think that it Avould have been; I should 
think that anybody seeking to throAV out that A^ote AA’^ould Avant to do it 
by fair and satisfactory eAudence, and shoAv that somebody Avas in- 

^^Mr. Hudspeth. The evidence sIioaa^s that the polls opened there a 
little early ? 

Mr. Grigsby. Yes; I think so. 

Mr. Hudspeth. Noav, is there any eAudence as to Aviien the polls 
closed ? 


228 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. Grigsby. None whatever. 

Mr. Hudspeth. Is there any evidence that anyone who offered 
to vote, or desired to vote during that day, was deprived of the 
privilege of voting by the fact that the polls were closed ? 

Mr. Grigsby. There is none, and none claimed. 

Mr. Hudspeth. The evidence shows, as I recall, that they opened 
the polls early, they voted early, and a number left; is that it ? 

Mr. Grigsby. Yes; I think there were 23 left early in the morning. 

Mr. Hudspeth. Well, how many votes were polled there? 

Mr. Grigsby. I will look that up and tell you. Of course, there 
is no evidence that every one of those who left was a voter, Mr. 
Hudspeth. 

Mr. Hudspeth. No; I do not supjiose that. Well, then, is there 
any evidence that the ballot box was taken out by these people who 
left early in the morning? 

Mr. Grigsby. No, sir. The vote stood 23 for Sulzer, 2 for Wicker- 
sham, and 1 for Connell; 26 votes in all. 

Mr. Dowell. What do you say about the law, Mr. Grigsby ? Judge 
Wickersham presented his theory of it that if the polls are opened 
before the hour provided by law, or remain open after the time of 
closing as provided by law—is the vote cast before or after the time 
prescribed an illegal vote? 

Mr. (trigsby. The authorities generally hold that there is a dif¬ 
ferent state of facts presented by having the polls open after the 
closing hour, particularly when the result at the time of the closing 
hour can be ascertained. Now, a certain man is ahead at 6 o’clock, 
which is the legal hour for closing the polls; and then they are kept 
open afterwards and the result is changed by their being kept open 
until 10 o’clock. In such case it has been held that those late votes 
were illegal. 

Mr. Chindblom. But suppose that certain voters can not present 
themselves before the polls open, and for their accommodation the 
polls are opened ahead of time, and they do vote, and it appears 
that if the polls had not been opened ahead of time they would not 
have voted; is not that about the same? 

Mr. Grigsby. Yes; if it w^ould appear that they would not have 
voted; but it does not appear in this case that they would not have 
voted. The probability is that if they had not voted when they did 
they would have waited until they could. But a different situation 
presents itself in the evening, because then it is too late to change the 
plan so as to comply strictly with the law. It is changing the hours 
for the accommodation of the voters. 

Mr. Dowell. Are there any authorities that you have on that 
question ? 

Mr. Grigsby. Yes. 

Mr. Dowell. That will give us light on the question as to whether 
or not the fact itself of voting before or after the time prescribed 
by law makes the vote an illegal one? 

Mr. Grigsby. Yes, sir; McCrary on Elections, section 165, after 
reviewing the authorities which are in conflict, says: 

From all the conflicting authorities upon the subject the following may be 
gathered as the governing rule: 

1. If the statute fixing the hours during which the polls shall remain open 
expressly declares that a failure in this respect shall render election void, it 
must be strictly enforced. 


WICKERSHAM YS. SULZER (DECEASED) AND GRIGSBY. 229 


as“s(ft"iVlii,w 4 K—of sue] 1 a provision in tlie statute, it will be resardeU 
« s SO icir cliiectl^ only as that unless the deviation from the legal hours has 
affected the result it will be disregarded. 


1 he latter clause refers to the result being affected by illegal votes 
cast etoie or after the legal hour, or to legal voters being prevented 
from casting their votes by a deviation from the legal hour; in other 
Yoids, to be material, the deviation from the legal hours must affect 
t le lesiiJt by causing the reception of illegal votes or the rejection 
of legal votes. 

Xov, that covers this case. It is not shown that any legal voter 
was deprived of his vote by the fact that the polls were opened half 
an hour or an hour earlier than usual, or that any illegal vote was 
iecei\ ed on that account, and the preponderance of the testimony is 
that they got up early in the morning and probably voted along 
about (.30—there is a slight variation. 

There is another rule comes in there which shows he means by it 
afiecting the result: 


3. If the deviation from the legal hours is great or even considerable, the 
presumption will he that it has affected the result and the burden will be upon 
him who seeks to uphold the election to show affirmatively that it has not. But 
if the deviation from the legal hours is but slight the presumption will be that 
it has not affected the result and the burden will be upon him who attacks 
the validity of the election to show affirmatively the contrary. 

4. If the number of votes illegally cast after the legal hours and the persons 
for whom cast can be shown they may be rejected from the count (citing a case 
liolding that where the polls l)y law were recpiired to close at 7 o’clock in the 
evening the jcandidate who received the most votes before 7 p. m. was elected, 
though the polling place was kept open until 10 o'clock, and when closed the 
other party had the majority). 

^ That is the oue I told you about Avhere the result was changed. 
Xow, there might be circumstances where—people are supposed to 
meet on equal terms in an election; they are supposed to fight it out 
on election day, to use all legitimate means to get their people to 
the polls, and one candidate should not take advantage of the other 
one. He should not get election officers to accommochite him, when 
he finds he is beaten at 6 o’clock, to keep the polls open while he 
rushes off and gets people from a distant place, because he is getting 
an advantage over the other fellow. Now, that is the theory of 
that. 

Mr. Hudspeth. What have you on opening before hours? 

Mr. Grigsby. I have not found any case that says that the openings 
of the polls prior to the opening hour will vitiate the election in any 
way, unless it was the night before. There is one case where they 
Avere opened the night before, not on election day at all. 

Mr. Hudspeth. Let me ask you right there, Mr. Grigsby, Avhat 
time does the sun rise in Alaska at that time of the year ? 

Mr. Grigsby. Well, that is pretty far north; I was coming to that. 
In November, the days get short very rapidly up there, so that I 
should say that it is dark until about 7.30; tAvilight at 7.30 or 8 
o'clock that time of the year. It depends on Avhether it is a cloudy 
((ay or not. The change is very rapid. I have lived in that exact 
latitude; I lived a little north of that. Of course, by the 21st of De¬ 
cember in Nome you have artificial light all the time except betAveen 
about 10 in the morning and 2 in the afternoon. You can Avalk on 
the beach there and see the sun rise, and before you stop for lunch it 
will go doAvn. 


230 WICKERSHAM VS. SULZER (DECEASED) GRIGSBY. 


Mr. Hudspeth. Have you ever been to this exact place? 

]\Ir. (trigsby. No; not this place. It is pretty near as far north as 
Nome, and as the testimony shows, the felloAvs that have been work¬ 
ing there on this dredge had been getting up and going to breakfast 
by lamp light, so that everybody concedes it was dark. 

Now, here are some more cases: 

It appears that a statute recpiiring that the polls shall be opened till sunrise 
and kept open until the setting of the sun is so far directory that before an elec¬ 
tion can be set aside because of a deviation from the statute in this respect it 
must be shown that legal votes were excluded or illegal votes received in con¬ 
sequence thereof. 

Now, were any illegal votes received in conseqeunce of the opening 
of these polls early ? That is the point. If it was kept open after 
liours, that is, or if it was closed too soon, you will have to show that 
legal votes Avere excluded. The deviation itself does not make any 
difference under this authority, if no legal A’otes Avere excluded or no 
illegal Amtes receiA^ed. That is just the rule. 

^Ir. Doavell. What is that authority ? 

Mr. Grigsby. That is “ The People v. Cook, (8 N. Y. 67) ; Soper 
V. Board Co. Com’rs (46 Minn., 274).” 

Another case: 

A slight deviation from the direction of the statute in this respect Avill not 
render void the election unless it is fraudulent and operates to deprive legal 
voters of their rights, or unelss the statute in express terms makes the hour of 
opening and closing the polls form the essence of the election. 

That is if it is mandatory. That is “ ClcA^eland v. Porter (74 Ill., 
p. 76).” • 

Noav, in election contests, reading from Powell’s Digest of Con¬ 
tested Election Cases, which Judge Wickersham read from the other 
day, here is the only case that 1 found that is anywhere near in 
point here: 

The objection made that the soldier’s election law requires the polls to rmain 
open at least .3 hours is regarded by the committee as frivolous when he makes 
no effort to prove that any voter was ])revented from casting his A'ote, but only 
ol)jects to votes that Avere cast, and Avhere no attempt is made to prove fraud. 

You see, that is the conA^erse of the present case. 

Mr. Doavell. IVhat is that citation ? 

IVIr. Grigsby. That is Coombs v. Coffroth, in the Thirty-ninth 
Congress, second, Bartlett, 141: 

Where a poll was not closed until some time after 6, the committee expressly 
refrained from deciding Avhether the vote received after 0 o’clock should be 
rejected or not: but where polls Avere closed after 0 o’clock and aftei'Avards re¬ 
opened again, they rejected all of the Aotes receiA’ed after the first closing. 

There are some other cases, but they do not seem to be anyAvhere 
near in point. That is on page 749 of this digest. The Aveight of 
authority, as I can find it, is unless some illegal Amter Avas enabled 
to Amte or some legal AX)ter Avas preA^ented from Amting, that a deAua- 
tion from the statutory hours of closing shall, in the absence of proof 
of fraud, not affect the result. 

Noav, the testimony is, of one Avitness, that they Amted as early as 
betAveen 4 o’clock and 5.15. They got up at 4. Now, you gentlemen, 
in considering these things, you must consider the kind of a country 
it is, and the general looseness of the election hiAvs, adapted to the 
conATnience of the people, and the distance they are from any place 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 231 


where the correct time in known; and if you ever lived in a mining 
country you know that they talk about “ camp time ” and ‘‘ town 
time,” and sometimes they are an hour and two hours apart; and you 
will hear whistles, even around Nome, there, we would hear noon 
whistles blow for about an hour—only four miles from town. Now, 
up there where they have no telephone or telegraph, and their elec¬ 
tion is ordered, and it happens that they have shut the dredge down 
just before the election day, and the camp is going to close—^suppose 
that they do all get together and say: “ Let us open up as early as we 
can in the morning.” Now, the judges did not go out. This fellow 
‘‘Ked” McDonald—he is an alien, a man whom Mr. Wickersham 
relies on—he names: Charles Irvin, Harry Kingsbury, Sept. Irvin, 
Joe -, Dave Lawrence, Fred Peleivor, Gerhart, Strom, Eed Mc¬ 

Donald, Mr. and ^Irs. Wheelock, Al. Wolf, Chas. Herman, Davis, 
Brennem, McGroart}^, Mattocks, Frank Magnolia, Dick Anderson, 
Mr. and Mrs. Archie Anderson, Frank Ingleliorn, Dixon, and Whit¬ 
ing, who left that morning. 

And the testimony is that there were several others remained be¬ 
hind, and the election returns will show that the judges are not among 
that list of names of those that left. When you get your election re¬ 
turns of this precinct you will find that the judges of the election were 
not in that list. Now, the burden is not upon me to prove anything. 
I do not doubt but what from an analysis of the testimony that they 
voted a little before the legal hour—not mucli, unless you are going 
to take one witness’s testimony for it. The rest, I think, give an esti¬ 
mate of the time. Now, here is the testimony of Harry Kingsbury : 

Q. Did you leave on the fifth day of November?—A. Yes. 

Q. How many were leaving at that time?—A. Well, there were probably 25 
or 30. 

Q. Did that include all of the population of that place?—A. No, sir. 

Q. How many remained?—A. Well, for the Cache Creek Co. there ^^'ere five 
or six men. 

Now, there is no evidence that there were not other residents of the 
precinct, and there is no evidence that all of these men who went out 
were legal voters, or did note; but some men remained behind, and the 
judges of the election are not among those that this man testified 
went out early in the morning. 

Mr. CiiiNDBLOM. The man who testifies as to the approximate 
time when the voting occurred; what does he say ? 

Mr. Grigsby. McDonald? It is on page 292 of the record. He 
says 4 o’clock they got up, and that they were out of the camp by 5.15. 
He is very positive in his testimony. 

Mr. Chindblom. Was there any other witness offered by the con¬ 
testants who testified otherwise on this subject? 

Mr. Grigsby. Well, I can best tell you — I have a short review of 
their testimony. It would not take me long. There were six wit¬ 
nesses testified. I will quote James Wheelock: 

Q. Do you know what time the polls opened that morning, Mr. Wheelock?— 
A. I do not. 

Q. Did you vote?—A. I did. 

Q. At what time of day did you vote?—A. I can not say, I never noticed the 
time. 

Q. What was the condition of the light at the time you voted?—A. Lamp light. 

* ♦ * * * !(5 * 

Q. It was dark then outside?—A. Yes; it was. 

* W. 


1 


1 



232 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Q. What time did the day shift go to work?—A. At 7 o’clock. 

Q. What was the condition of the light at 7 o'clock?—A. It was not daylight 
at 7 o’clock. 

* !i« * 

Q. You can not say from your own knowledge that they opened before 8, can 
you?—A. No; I can not say for certain. I rather think it was. 

Now, you gentlemen may not understand that, but I can. I know 
what it is to get up early in the morning and get breakfast and get 
out on a trip in that country, and you do not know what time it is. 
You get up pretty early and get in all of the travel you can before 
dark, and you do not stop for lunch; you make a station where you 
Avill be secure against a blizzard. 

Now, we will take Mrs. James Wheelock. She testified that: 

She was positive that oii the morning of election the Cache Creek Dredging 
Camp was breaking up; the men were leaving camp. She did not know what 
time the polls opened but was positive the men who left left before 8 o’clock. 

Now, she is not a hostile witness to Mr. Wickersham, otherwise 
she Avould not be positive they left before 8 o’clock, because if they 
left before 8 o’clock they must have voted before they left. Now, 
they got up in the morning and packed up; they had their breakfast 
and they voted and then left. There is evidence that it was before 8 
o’clock. 

Mr. Chindblom. What page of the record? 

Mr. Grigsby. Page 285, Mrs. James Wheelock. Now, she says that 
that was not from looking at her watch, but just her opinion, on 
cross-examination. 

Now, here is another, Harry Kingsbury; I read his. Here is what 
he says about the time, on page 288 : That they left camp that morn¬ 
ing when it Avas just getting daylight.” Daybreak Avas about 7.30— 
that he Amted “the last thing before he left.” Now, gentlemen, 
there is positiA^e testimony of Harry Kingsbury that he Amted some 
time about daybreak, Avhich was 7.30. It Avas getting daylight. Day¬ 
break Avas 7.30. He Amted the last thing before he left. 

Mr. Chindblom. Was it before 8 o’clock? 

Mr. Grigsby. I can not say definitely; but it could not have been 
before 7 o’clock, because he left Avhen it Avas just getting daylight. 
Daybreak Avas at 7.30, and he Amted the last thing before he left. 
Noav, Avhen it is dark it is easy to imagine that it is 4 o’clock in the 
morning, or the middle of the night. But the contestant says that 
the “ undisputed testimony of all the Avitnesses shows that ballots were 
deposited in the boxes between the hours of 4 a. m. and 5.15 a. m.” 
Then a Avitness says he voted the last thing before he left, and that 
Avas 7.30; so Mr. Wickersham’s evidence is repudiated. 

^Ir. Elliott. Well, the evidence sIioavs that all of these votes were 
cast prior to 8 o’clock ? 

Mr. Grigsby. Yes; Avhere it shoAvs anything at all. Here is the 
testimony of Charles McGroarty: 

Q. Do you recall the condirioii!^ of the camp in re^anl to closiiij; up and leaving 
on the morning of the 5th?—A. The work had closed down and we were in a 
hurry to leave and were getting ready. 

******* 

Q. Did you vote?—A. Yes, sir. 

Q. After or before breakfast?—A. After breakfast. 

Q. AVhat time when you \’oted?—A. Can not say; I went to the polls and voted, 
by lamp light. 

"'* ’’* * * * * 


WICKEESHAM VS. SULZER (DECEASED) AND GRIGSBY. 233 


Q.W hat were yon doing there?—A. Working in the mine. 

Q. For tlie Cache Creek Co.?—A. Dredging. 

Q. What time did yon go to work?—A. 7.80. 

Q. Wliat was the condition of the light in the early part of November when 
going to work?—A. Some packed a light. I never did. 

You gentlemen know, it was probably just getting light; every day 
getting darker, as ever 3 'body knows. 

Xow, Charles Irvin, he testified: “ That on the morning of the elec¬ 
tion day he got up by an alarm clock; that the alarm clock was 
usually set for 4.30.” Irvin was the cook. Everybody knows, of 
course, that the cook gets up in the middle of the night, when cooking 
for 25 or 30 men. “ But he Avas not sure Avhat time it was set for on 
that morning; that the day shift went to work at the dredge at 7 
o'clock and at the coal mine at 7.30; that they had breakfast by lamp¬ 
light ; that he left camp with the rest of the bunch that morning—did 
not notice the time.” He Avas the man who had the time. 

Malcolm McDonald testified: 


That there were over 80 men emi)loyed by the Cache Creek Dredging Co.; 
that 28 men left camp the morning of election day; that at 4 o’clock in the morn¬ 
ing he was ont in the yard getting ready, packing the sleds; that they had 
breakfast about 4 o’clock; that it was dark when they left camp; that the 
dredge is about a mile from the camp. 

Q. Do you remember anything about the condition of Ihe light?—A. Yes; I 
recollect that it was not so dark as Ave passed the dredge. It was breakfast day¬ 
light, still I could not see the head team. There were three or four teams ahead 
of me. 

He left the camp at 5.15; the dredge Avas a mile aAvay; it Avould 
not take over 20 minutes to go that mile, and it Avould not be break¬ 
ing daylight at 6 o’clock. It Avould be probably darker than any 
time during the night. This man is not a Amter, and not a citizen 
of the United States. Noav, if they left there about 5.15 in the morn¬ 
ing, gentlemen, then eA^ery one of these other Avitnesses has perjuiyd 
himself. Xoav, thev might be mistaken an hour in time, or 30 min¬ 
utes, but as betAveen having breakfast at 4 in the morning and having 
it at 7.30, and voting at 4.30 and voting at 7.30 there is no room for 
such a difference of opinion as to the correct time. 

Mr. O’Connor. MTiat Avas th idea of starting early? 

Grigsby. The idea is that in that country Avhen you start out 
on a day's journey you have to make a certain point or you have 

no lAlace to pass the night. i r i ^ 

Mr. O’Connor. The idea is to cover as much territory by daylight. 
^h\ Grigsby. Certainly, and to get some place Avhere you can 


Mr. O’Connor. Getting aAvay too early Avould be just like arriving 

Mi^^Grigsby. No ; vou get up in the morning and get your break¬ 
fast, and the traA eleVs in that country arrange to start as soon as 
they Clin see to travel, as soon as they can see the trail, and it any- 
lhim>- happens thev can go back; you are ahvays taking a chance in 
that%oui\try, even in daytime. MTien you start you have to know 

^^^Mr. O’Connor (interposing). IVhat I meant was, if you 
early and started on a journey in order to cover as much teiiitoiy 

as possffile by^d objective point before 

dark;' that is the idea.^ You will even start out in the dark. 


234 WICKERSHAM VS. SULZER (DECEASED) Al^D GRIGSBY. 

I have done so myself many times and so has Judge Wickersham. 
Now, here are these people, white people, 'that swear they conld not 
tell what time it was, that it was about daylight, that it was about 
7.30, and what you will have to conclude from this evidence is that 
there Avas a slight aui nation probably from the legal hours in the 
opening of the polls, and there has been nothing shoAving that any 
legal Aoter Avas disfranchised by it, or that any illegal Amter was 
run in. Mr. AVickersham says in his brief, “ Imagine the spectacle 
of my Republican watcher coming along there at 8 o’clock and he 
finds the polls closed, the judges gone, the ballot box gone; everybody 
that has voted has gone to Seattle or to remote points in the 
Territory.” 

There is no eAudence that he had a watcher, no evidence of any¬ 
thing of the kind,Avhen his Avatcher got there, if he did haA^e a Avatcher, 
or that anybody went to Seattle or to remote points. That is a viAud 
picture of Avhat an aAvful shock it would be to a Avatcher. If he 
showed that they ran in a lot of aliens there at 3 o’clock in the morn¬ 
ing and A'oted before the Avatcher would haA^e a chance of challenging 
them, there Avould be something to his contention. But these boys 
up there just had a trip to make, and they did not Avant to lose a day’s 
time. That is the time of year when fall changes into Avinter, and 
the blizzards come, and they wanted to go Avhen the going Avas 
good, and a man can not exist up in that country after he has no 
business there. He has got to go. Suppose they did open the polls 
an hour earlier or tAvo hours earlier. With no evidence to shoAv that 
they did not keep them open all day, do you think that this House 
or this committee is going to unseat a Member in the absence of any 
fraud shown? I am Avilling to submit it to you on the facts in this 
case. 

I can imagine the ansAA^er IVIr. IVickersham would make if the shoe 
were on the other foot in this case, and we were trying to throAv that 
Amte out. Mr. Wickersham is probably more familiar with the 
conditions in the interior of Alaska than I am, and if in any country 
you should construe your election laws liberally in these respects, it 
certainly is in Alaska. In a frontier country that is not a country 
where there is an opportunity for going out and grabbing a lot of 
illegal Alters and running them into the polls and committing fraud 
by A^ariations of the legal hours, and these laAvs liaA^e been construed 
liberally even in the States, according to the decisions I have read. 

Now, are you going to put an absolutely strict construction on the 
law up in Alaska and hold us doAvn to the minute, when it has not 
been done anvAA here else ? I am not afraid that you are. 

Noav, the next fraud I Avish to discuss is the 40-mile precinct elec¬ 
tion fraud, as it is alleged to be. 

Before coming to that there is an alleged fraud in the Copper 
Center precinct, referred to on page 151 of my brief. Now, the 
judge did not, I do not think, ask you to take that contention seri¬ 
ously. It seems that the United States marshal came along to Copper 
Center, Avhere Sulzer neA^er receiA^ed much of a A'ote, and Avhere they 
had some disagreement about Avhere the post office ought to be, and 
the residents Avanted it in a certain place, and putting the Avorst view 
on the situation, ErAvin told one of the prominent citiens of this town. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


235 


which cast 10 Azotes afterAA ards, that if the boys AA'Oidd get out and do 
something for Snlzer in the primary, he AA^onld use his influence Avith 
8ulzer to get that post office put back AA’here they AAUinted it, and they 
did get out and they all Amted for Snlzer in the primaries. 

Siilzer, either for that reason or for some other reason—the evidence 
does not sIioaa^— did comply AAutli the unanimous opinion of the com¬ 
munity and put the post office where everybody Avanted it. There 
Avas not anybody that Avas against it. I think there Avas one Amte for 
IVickersham in the primary. Then the marshal Avrote the work back 
to this felloAv, “ Xoav, you did fine, and Sidzer got the post office. 
XoAv shoAv your appreciation this fall in the election.” 

jNIr. Wickersham says the consideration had been delivered. They 
were under no further obligation, but they had a right to express 
gratitude. So in the fall they gave Mr. Snlzer 10 Amtes. Xoav, under 
Avhat theory are you going to throAv'them out? It is ridiculous. 

Mr. O'Connor. Hoav manv Avere there for IVickersham? 

^Ir. (trigsby. Xone. It seems that everybody that Avas living there 
Avas satisfied, and grateful, and they voted for Snlzer. Xoav, Mr. 
AVickersham does attempt, by leading questions, to make this Avitness, 
Blix, testify that the consideration extended to the fall, but here is 
Avhat he testified to when he Avas first examined. [Beading;] 

What sort of an arrangement did Judge ErAvin think ought to be made in 
consideration of his procuring these things for you and the patrons of the 
office?—A. That they should, in return for that, fa\"or Mr. Sulzer at the primary 
election. 

That is Mr. Blix’s testimony on page 693 of the record. [Beading:] 

Q. And at the fall elections, too?—A. At that time the general election Avasn’t 
spoken of. 

Xoav, I am going to turn to the record and read a little more, page 
693 of the record. This BingAvald Blix is an awful ingrate. He put 
up this job, and then preserved all the documents and turned them 
over to tlie contestant. I suppose he Avas the man Avho Avas still there 
at the date of the primary election and did not even deliver the goods. 
This BingAvald Blix testified. [Beading;] 

Q. Where were you horn?—A. In NorAA^ay. 

Q. Are jmu a citizen of the United States?—A. Yes, sir. 

Q. A full citizen?—A. Yes, sir. 

Q. Hoaa^ old are you?—A. 47. 

Xoav, he Avas formerly the postmaster and the United States com¬ 
missioner. He OAvned the building Avhere the post office Avas kept. 
[Beading;] 

Q. And you naturally Avaiited the post office to he kept in yeur building?—A. 
Yes, sir. 

Q. Was there a proposition of removing the post office from your place?—A. 
'There Avas. 

(). AVhere to?—A. To John IMcCreary’s place. 

Q. About hoAV far from Copper Center was that?—A. A half mile north of 
Copper Center. 

Q. Outside of the settlement?—A. Yes, sir. 

Q. And aAvay from Avhere people did business?— A. Yes, sir. 

O Did you oppose that movement to moA’e the post office? —A. I did. 

Q.’ Did the people thmv take a good deal of interest in Copper Center?—A. 

Yes, sir. 


236 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Q, Wluit was done about the matter, Mr. Blix; did yon consult the Demo¬ 
cratic officials about the matter?— A. Yes, sir. 

Q. AVhoni did you consult?— A. One Judge Erwin— 

You gentlemen do not know Judge Erwin, and I have to smile 
when I read this. [Eeading:] 

the United States marshal of the fourth division. I think I can explain that. 

Q. If you have any explanation to mnke about the matter, go ahead and do 
it.—A. About Januai'y, 1918, I bad contracted to dispose of my interest there in 
the hotel and mercantile business to a man by the name of Ditman ; and as I 
wanted to be relieved of the postmastership, naturally I recommended him as 
my sucessor to the Post Office Department, and I wrote them to that effect and 
recommended this man Ditman. In the meantime John McCrearie heard about 
my resignation as i)ostmaster, and be took it up Mith one T. J. Donohue, the 
Democratic committeeman, to get the appointment himself. 

(}. Mr. Donohue resided at Valdez?—A. Mr. Donohue resided at Valdez, and 
IMr. Donohue took up the matter with Mr. Sulzer at Washington at that time, 
the Delegate from Alaska, and I found out about it and took up a petition 
signed by all the i)atrons of the office, objecting to the appointment of Mr. 
^IcCrearie, as well as tlie moving of the post office to bis place. About April 19‘ 
Judge Irwin- 

Q. That is Marshal Irwin, of Fairbanks?— 

He is a great friend of Mr. AA^iekersham. 

Mr. AAhcKERSHAM. If that goes in the record, let it go in right.. 
He is one of my enemies. 

Mr. Grigsby. I can say it as you did the other day. 

Mr. AA^ickersham. The smile does not go into the record. 

Mr. Grigsby. Neither did the sarcasms where you read them in. 

Mr. CiiiNDBLOM. Let the record show that jmu smiled. 

Mr. Grigsby (reading) : 

A. .Marshal Irwin, of Fairbanks, came through Copper Center on his way to 
the States, and I took up the matter with him regarding the appointment of the 
I»roper man that the pec^Jle in the community wanted for postmaster; and know¬ 
ing that Judge Irwin would have more influence in Washington than probably 
l\ir. Donohue and IMr. Sulzer combined, I took the matter up with him, and he 
led me to believe that he could have the office kept where it was at that time; 
also the proper man appointed, and IMr. IMcCrearie’s name withdrawn upon his 
arrival there at Washington. 

(}. Well, what was done about it?—A. I took up the petition, circulated it, 
and had it signed by the patrons of the office and mailed it to ^Marshal Irwin at 
Washington, D. C. I think that is about all, up to the time that these telegrams 
took place. 

Q. AVhat sort of an arrangement did Judge Irwin think ought to be made in 
consideration of his procuring these things for you and the patrons of the 
office?—A. Tliat they should, in turn for that, favoi* Mr. Sulzer at the primary 
election. 

Q. And at the fall election too?— 

He was trying to sell out the fall election, too, in this testimony:: 
but he didnJ train him well enough. So he says: 

At that time the general election wasn't spoken of. 

Q. Was it later?— 

But that naturally Avould come later in the turn. 

This is a kind of deal with him; had a turn in it. [Beading:] 

Q. Did you receive any telegram from Judge Irwin about tbe matter?—A. I 
did. 

Q. I show you a telegram here, dated April 22, 1918, signed by L. T. Irwin,, 
and ask you if you received that from IMarslml L. T. Irwin?—A. Yes, sir. 

Q. He was at that time in Cordova?—A. Yes, sir. 

Q. It was just after he had passed through your place going out to the 
coast?—A. Yes, sir. 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 237 


Q. And that relates to matters and things that you have been talking about?— 
A. Yes, sir. 

Q. To his agreeing to maintaining the post oflice and procuring your post¬ 
master to be appointed at Copper Center?—A. Yes, sir. 

Mr. WicKERsiiAM. I offer that in evidence. 

INIr. Leehey. I object to it as being incompetent, immaterial, and irrelevant, 
and no connection being shown with Mr. Sulzer or anybody authorized in his 
behalf. 

(Paper marked “ Contestant’s Exhibit B ” and attached hereto.) 

Q. Did you receive any telegram from Marshal Irwin later than that?—A. 

I did. 

Q. I show you a telegram dated Washington, D, C., May 14, 1918, signed 
“ L. T. Irwin,” and ask you if you received that telegram?—A. I did. 

Q. I withdraw that for a moment, and offer the witness a telegram dated 
Ma.v 2, 1918, addressed to Charles A. Sulzer, House of Representatives, Wash¬ 
ington, D. C., and signed by R. Blix, postmaster, and I wish you would state if 
you sent that telegram to Mr. Sulzer at the date it bears?—A. Yes, sir. 

Q. That was after the primary election had been held?—A. Yes, sir. 

Q. What was the date of the primary election?—A. I can’t quite recollect; 
April 30, I think. 

Q. Two days before this telegram was sent?—A. About two or three days; 
shortly before, anyway. 

Mr. WiCKERSHAM. I offer this telegram in evidence. 

Xow, the telegrams were all put in evidence; then this cross- 
examination took place, which relates only to the identification of the 
telegrams. 

Then, again [reading] : 

Q. Do you know what IMr. Sulzer did with respect to these matters that you 
were telegraphing about in the way of getting the post office retained for you, 
and jmur postmaster appointed, in Washington?—A. Yes, sir. 

Q. What was done?—A. Judge Irwin and IMr. Sulzer went up to the Second 
Assistant Postmaster General- 

By Mr. Leehey : 

Q. Are you testifying from your personal knowledge or hearsay?—A. From 
our conversation with Judge Irwin. 

Q. From what Judge Irwin told you?—A. Yes, sir. 

By Mr. Wickersham : 

Q. Who is Judge Irwin?—A. United States marshal of the fourth division. 

Q. At Fairbanks, Alaska?—A. Yes. 

Q. He is a Democrat, is he?—A. Yes, sir; to my knowledge. 

Q. And IMr. Sulzer was a Democrat?—A. Yes, sir. 

Q. And Judge Irwin was one of Mr. Sulzer’s particular friends and boost¬ 
ers?—A. Yes, sir. 

Q. And was working for Mr. Sulzer in those matters?—A. Yes, sir; from 
the interest he took on his way out over the trail on his way to Washington 
it seems that he was. 

Now, I can not find anything more, except he goes on to testify as 
to the result of the vote; and the only thing that connects the fall 
election with this—now, wait a minute; he comes in again, a ques¬ 
tion by Mr. Leehey on cross-examination. [Beading:] 

Q. They thought his action in keeping the post oflice where practically every¬ 
body in the community wanted it was a very proper action to be taken by the 
Delegjite from the Territory, did they not?—A. It was at that time. 

Q. And they appproved his course in doing it?—A. Yes. 

Q. Didn’t jmu say in your direct examination that the talk you had with 
.Tudge Irwin and this very arrangement related only to the primaries?—A, At 

that time. ^ i i 

Q. Was there anything said about the fall election in your talk with Marshal 

—A. In his wire from Washington it states, if you have read that. 

Q I am not referring to the wire, I am referring to the talk you had with 
him. The wire will speak for itself. Was the fall election ever mentioned in 
any^of the conversations you had with Judge Irwin?—A. Yes, sir; it was. 



238 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Q, How and when.—-A. Well, at the time when he left there. 

Q. That was before the primary election, wasn’t it?—A. Yes. 

Mr. WicKERSHAM. Read that again. 

^Ir. Grigsby. Page 095 [reading] : 

Q. That was before the primary election, was it?—A Yes. 

Q. What was said about the fall election?—A. He said he hoped we would 
stick to him and jiive him a pretty j?ood showing. It was a foregone conclusion 
that he would get those votes then. 

Q. It was a foregone conclusion that he would get them at the primary or 
general election-.—A. At the primary. 

Q. That was the subject that \vas under discussion at that time, was the 
primaries?—A. Yes. 

Q. And his contest that the primaries was with jMr. Maloney? That was 
what was then discussed?—A. Yes; but the general was also mentioned. 

C). But the general was also mentioned. What do you mean by “ general ”?— 
A. General election was also mentioned. 

Q. V'lio mentioned it?—A. Judge Irwin and myself, when he left there. 

Q. Didn’t you just say in direct examination that the talk was then all 
about the primaries?—A. Not all together, but most naturally the primary 
came so many months ahead of the general election, and it would be natural 
it would have something to do when the general election came around. 

Of course tlie witness extends this as strong as he can to the gen¬ 
eral election. But it is not anything reprehensible so far as I can 
see about anything that was done. If it is, my moral sense is so 
sadly blunted that I am not shocked, as I state in my brief. Tom 
Donohue denies that he had anything to do with anything that was 
not perfectly proper. I do not remember exactly what he said 
about it, but here is the situation: Here is Sulzer down in Con¬ 
gress, and Erwin comes along, and here is one fellow trying to 
get the post office moved out into the country and everybody else 
wants it in the town, and the marshal is on his way to Washington 
and they go to him, a man of his prominence, and they ask him to 
fix it up that this thing could not be perpetrated upon them. 

As he is a good politician, he gets them to make a good showing 
for Sulzer in the primary, and then he does down there, and the 
telegrams show that after it was done he wired back and said: “ You 
ought to do as well in the general election. Noav, Sulzer has done 
so much for you fellows, show 3 mur appreciation.” It does not 
shock me, and you gentlemen do not look veiy badl}^ shocked, so I 
guess I will drop that particular subject. 

Now, I have only three more of these subjects to discuss, the Forty- 
mile, the Indian reservation proposition, and the soldiers, and then 
I have my own offset, so I suppose I had better go ahead and get rid 
of some more of it. 

The Chairman. I think you can get rid of some of it if you like. 

Mr. (fRIGSBY. The Fortvmile precinct. There is a proposition 
that I would not blame the judge for raising in the contest if he did 
not raise it in the way he does. But it seems as if the judge must 
start back and accuse somebody of a crime as the basis for every con¬ 
tention. Now, eJudge Bunnell is the goat in this transaction, and he 
goes back into the history of Judge Bunnell’s connection with other 
alleged election frauds of 1916 just because of the fact that in the 
other contest Sulzer wired to eludge Bunnell and asked him to get 
him a lawyer. Further than that Judge Bunnell had nothing to do 
with the election. There is something in the testimony in the other 
record that one of the soldiers did see a telegram signed by' Bunnell 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 239 

on a bulletin board saying that soldiers had a right to vote, but there 
is the testimony of lots of other soldiers taken, and nobody else ever 
claimed that that was anything else but a mistake. 

Mr. Hudspeth. Who is Bunnell? 

Mr. Grigsby. Judge Bunnell, of the fourth division. 

Mr. Hudspeth. He is a Federal judge? 

Mr. Grigsby. A Federal judge; and Judge Bunnell’s clerk in the 
fall of 1918 wrote a letter to the commissioners in the fourth division. 
The letter is in evidence; put in evidence by Judge Bunnell in this 
testimony. It seems that the miscellaneous fund up there, out of 
which election expenses are paid, had become depleted, and they 
could not pay up in full for the annual election expenses of 1916. 
The population is leaving Alaska very rapidly, and there are lots of 
precincts up there where very few ballots are cast, as I will show you 
in the record. 

Mr. O'Connor. You say the population of Alaska is dwindling? 

Mr. Grigsby. It was at this time, and has dwindled steadily ever 
since the war commenced. The last census will show whether it has 
gone back or not. The vote of 1916 was over 14,000 and in 1918 it 
was only about 9,200. A large part of the population left. I was 
up there in the fall of 1918, on this Fairbanks Trail. The people 
were rapidly coming out, and every roadhouse was full eA^ery night. 

These are some of the precinct Azotes in the Fourth division: Cold- 
foot, total 14; Circle, 16; Deadwood, 13; Discovery, 24; Dome, 29; 
Ester, 29; Eureka, 19; Fairbanks Creek, 23; Fort Yukon, 18; Frank¬ 
lin, 9; Greenstone, 7; Gilmore, 25; and so on, 12, 5, 25, 21 etc. In 
1918 there Avere from 10 to 20 Azotes cast in most precincts, and in tAvo- 
thirds of the cases less than 30 votes, in the precinct, and the law says 
that no commissioner shall establish a precinct where there are less 
than 30 legal voters, but it says that if a precinct is once legally estab¬ 
lished it shall continue as such precinct until changed or discontinued 
by the order of the commissioners, so that if there are 13 or 20 voters 
in a community, he can not establish it, but if one has been estab¬ 
lished and there are only five living there he can continue it, in his 
discretion, or abolish it. The clerk of the court up there wrote a 
letter to the various commissioners and called attention to the fact 
of the election .expenses, and said that while it Avas not desired that a 
large number of Alters be disfranchised, to be careful about it. These 
letters went to eA^ery commissioner in all the 70 or 80 precincts in the 
fourth division, and one commissioner acted on that letter of Judge 
Bunnell’s clerk of the court—it Avas submitted to Bunnell. He saw 
it. He says so. He admits it, and out of these precincts probably 
there were 40 in the fourth division, where there were less than 30 
voters, and Avhere the commissioners could haA^e legally discontinued 
them. One commissioner discontinued two precincts, and included 
them Avith three other precincts. Now, that is all the crime that can 
be attributed to Judge Bunnell in connection with the transaction. 
That is the evidence. His clerk of the court Avrote that letter, not to 
this particular commissioner, but to all of them. That was testified 
to as being a fraudulent attempt to suppress a Avhole lot of legal 
votes. It was just a very sensible letter. It is in the record, and I 
think I had better read it to you. It was put in by our side. Here is 
the letter, page 617. It seems that it is addressed to United States 


240 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


commissioners, inclosing the election supplies to various ])recincts 
[reading] : 


To 


United States 


Distkic't Court 
Coinniissioners: 


OF THE Territory of Alaska, 

Fairbanks, August 26, 1918. 


Supplies are inclosecl herein for the votinj? precincts in your recording? jire- 
cinct. An invoice is also inclosed and you may apportion the supplies herein 
to the different voting precincts. 

Please see that all vouchers for posting notice of election are executed and 
returned here, for payment promptly. Also please be sure and sign the certificate 
of posting notices, as well as having the same signed liy the person who posted 
the notice. 

Commissioners, generally, are to be commended upon the manner in which 
they have responded to the suggestion of economy in election expenses. There 
is still one matter, however, which should be brought to the attention of the 
election officers. 

It appears that many election judges are under the impression that a strong 
and expensive ballot box must be had. Such is not the case, and some dis.satis- 
faction has lieen the result of disallowing exorbitant charges for ballot boxes. 
In places where a good ballot box has been made, it should be used for all sub- 
seipient elections, but if it is found necessary to incur such expense, then only 
a nominal charge will be allowed. 

The same general request for economy is made herein as was made in the 
election two years ago. You are earnestly requested to bring these matters 
directly to the attention of election officers and if this is done, complaints and 
dissatisfaction regarding the allowance of expenses will be eliminated. 

The attention of one or two commissioners is directed to section 896 of the 
Compiled Laws of Alaska. The law does not contemplate the establishing of 
voting precincts in places where many prior elections have proven that there 
are but live or six votes. 


That is establishing them. Nothing is said about discontinuing 
them [reading] : 

While it is not believed that any considerable number of voters should be 
deprived of their franchise by reason of having no voting precinct estab¬ 
lished, yet it is a matter which should receive the careful attention of the 
commissioner creating the same. 

Respectfully, 

J. E. Clark, Clerk. 

Now, Bunnell says that that leter was submitted to him and that 
he approved of it. It was* sent out with the supplies. Now, he says 
the reason for it was [reading] : 

Q. Did the clerk of your court, the clerk of the district court for the fourth 
division, in sending out election supplies to the various commissioners through¬ 
out your division for the election of the year 1918 accompany them with a letter 
which met with your approval?—A. Yes; the clerk of‘the court, prior to send¬ 
ing out the election supplies, prepared a letter which he submitted to me and 
which met with my approval. It came about in this way: When I went to Fair¬ 
banks in 1915, fund C of the court was $4,500, or thereabouts, in debt. Of that 
amount nearly a third was for election expenses for 1914; in fact the clerk had 
all of these vouchers for election expenses as sent in by the judges of the elec¬ 
tion, but very few had been paid. We had to secure authority from the attor¬ 
ney general to pay those expenses outside of our regular method, or at any rate 
to arrange so that it could be paid. 

The clerk wrote this letter cautioning the commissioners not to 
contemplate establishing voting precincts in places where prior elec¬ 
tions had proven that there were but five or six votes. Before there 
were 40 or 50 precincts where there were less than 80 votes, and the 
commissioner had the legal right to discontinue any of these, but 
ouly one commissioner attempted to abolish two precincts in all that 
fourth division on account of this letter written by Judge Bunnell’s 


WICKERSHAM VS. SULZER (DECEASED) AITD GRIGSBY. 241 


clerk, and there is no justification for any reflection upon Bunnell 
by the contestant on that account. 

Bunnell was not responsible for it and there could be no particular 
complaint made against the commissioner for doing it. It is true 
that it Avould have compelled, according to the evidence, the voters at 
Jack Wade and Steele Creek to walk or travel a distance of 14 miles 
and return, and in some cases 16 miles and return. According to the 
testimony of the witnesses they would have to go about 32 miles 
round trip, and some of them 28. Now, just imagine the situation. 
Here is a Territoiy with 10,000 votes. There are 9,200 votes, but we 
will call it 10,000 and then increase the mileage and call it 600,000 
square miles. There is in Alaska a voter for every 60 square miles. 
Half of these are centered and concentrated within 200 or 300 square 
miles, so in these outlying districts you have got a voter for every 
100 square miles, and there are lots of them that will not get to 
vote at all unless they travel for 50 or 60 miles if you can not estab¬ 
lish a precinct for them with less than 30 voters in it, but having es¬ 
tablished it you can continue it as long as you want to if the Govern¬ 
ment is willing to pay for it, even if it has dwindled to five or six 
votes. 

Mr. O’Connor. You can discontinue it? 

Mr. Grigsby. You can discontinue it, because the law says that 
no precinct shall be established in which there are residing less than 
30 qualified voters, but once established the same shall continue 
until discontinued or abolished by order of the commissioner. So 
he certainly has that right to abolish it. Now, this fellow went out 
there in a precinct where there were less than 30 votes cast—consid¬ 
erably less in 1916; the record shows how many votes were cast— 
and he abolished Steele Creek and Jack Wade. Now, let us see 
how many votes were cast in Steele Creek and Jack Wade. 

The Chairman. You are referring to 1916? 

^Ir. Grigsby. Yes. At Jack Wade there were cast in 1916 21 
votes, of which Connolly got 9, Sulzer 4, and Wickersham 8. Now, 
the socialists have not complained. At Steele Creek in 1916 there 
were cast 10 votes—Sulzer got 1, Wickersham 7, and the socialists 2. 

Mr. Hudspeth. That is in 1916? 

Mr. Grigsby. Yes. Wickersham carried these two precincts over 
Sulzer in 1916 by 10 votes, and there were 21 votes cast in one and 
10 in the other, and the commissioner had the legal right to abolish 
both of them, which he did. He abolished these precincts, or at¬ 
tempted to. That is the question in this case, whether he abolished 
them or not. If he legally abolished them there is no question in 
this case, because he has the right to do it, even if he did disfran¬ 
chise voters. 

Mr. Hudspeth. I am asking this in order to set myself right. I 
do not recall that Judge Wickersham made any contest as to abol¬ 
ishing any precinct in the Territory. 

Mr. Grigsby. Oh, yes; he discusses this Fortymile proposition. 
Fortymile is where the recording district Avas reorganized, and two 
precincts were abolished and incorporated in three other precincts by 
an order Avliich was made less than 60 days before the election. 

Now, the laAV requires that at least 60 days before the date of the 
election the commissioner shall issue an order and notice signed by 

181744—20-16 


242 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


him and entered in his records in a book to be kept by him for that 
purpose, in which said order and notice he divides the election dis¬ 
trict into voting precincts and describes them and specifies a polling 
place in each of said precincts, and gives to each voting precinct an 
appropriate name by which the same shall thereafter be designated, 
provided that no such voting precinct shall be established with less 
than 30 qualified voters resident therein; that the precincts established 
as aforesaid shall remain as permanent precincts at all subsequent 
elections unless they are discontinued by order of the commissioner of 
that district. 

Now, it does not say when the order is to be made. 

Mr. Hudspeth. Let me ask you, Mr. Grigsby, in this Fortymile 
district did he abolish some precincts ? 

Mr. Grigsby. Up until 1916, or until the 1916 election, there were 
five voting precincts in the Fortymile recording district. 

Mr. Hudspeth. That is all right, then how many were there in 
1918? 

Mr. Grigsby. Three. 

Mr. Hudspeth. Then there were two abolished ? 

Mr. Grigsby. Two abolished and the law requires that at least 60 
days before each subsequent election, after 1906, the commissioner 
shall divide his election districts into precincts. Now, that does not 
mean he has to do it every year. At the first election for Delegate to 
Congress he only had to do it 30 days before election, because they 
did not have so much time. And then it says in all subsequent elec¬ 
tions the commissioner must divide the recording district into pre¬ 
cincts 60 days before election, that means where there is an occasion 
to make any division. Where it is already divided, the section says 
it may remain and the man does not have to make an order every 
two 3 ^ears redividing his division into precincts. He does have to 
post a notice of election, as I understand it. The more I read this 
the more things occur to me. 

Mr. O’Connor. As I understand, Mr. AVickersham does not con¬ 
test the right of the commissioner to abolish these precincts, but says 
that it must be done 60 days prior to the election. Is that correct ? 

Mr. AVickersham. It must have been done 60 days prior to the 
election, and in such a Avay as to give the people an opportunity to 
vote. 

Mr. Grigsby. That leaves lots of room for argument. 

Mr. Elliott. You claim that it was not done in accordance with 
the law ? 

Mr. AVickersham. Not in accordance with law. 

Mr. Grigsby. I do not know what he means when he says it must 
be done so as to give an opportunity to vote. Some of these recording 
districts contain over a thousand square miles. 

Mr. O’Connor. AYere these precincts abolished within 60 days. 

Mr. WiCKERSHAM. The thirty-fifth day before election. 

Mr. Grigsby. The thirty-fifth day before election. 

Mr. O’Connor. So that the commissioner had the right to do that ? 

Mr. Grigsby. I have not got to that yet [reading] : 

And all such voting precincts shall remain as permanent precincts for subse¬ 
quent elections unless discontinued or changed by order of the commissioner. 

Mr. Chindblom. However, while he divides up the election dis¬ 
trict into precincts within 60 days, or 60 days before election, he is 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 243 

not compelled to give notice or publicity for a longer period than 
30 days? 

Mr. (trigsby. Yes; that is in the next section. Now, the date of 
the copy of his order is in evidence, and shows that it was dated 
on the thirty-fifth day before election. Now, as far as the publish¬ 
ing of it is concerned, he gave the statutory notices, and there is no 
complaint on the part of the voters that it did get to the voters. 
Now, the order is defective in a trifling particular. In establishing 
the polling places they are indefinitely established. It says, ‘‘ Moose 
Creek ”—gives the name—and it does not say it shall be at the corner 
of One hundred and sixty-seventh Street and Broadway, or any¬ 
thing like that, but when he said Moose Creek the chances are every¬ 
body knew what he meant up there. But the order is irregular 
and defective in these particulars technically; it was not made 60 
days before election, and it compelled 15 or 18 voters, if they wanted 
to vote, to walk or ride a distance of 14 to 16 miles and return, and 
some of them did it. And some of them got mad and would not do 
it. And they expressed their wrath. Most of them testified, that 
they would have voted for AVickersham if they had been able to vote, 
and there is no evidence to the contrary. 

There are a great many hundreds of voters in Alaska that have to 
go that distance to vote, and many other hundreds of voters that are 
deprived of their vote because they have to go a great deal farther, 
and not one of these voters complained because of the date of the order. 
In fact, they are on record as having protested this redivision several 
weeks before election. These very fellows that afterwards come in 
and swear that they were deprived of their vote because they had to 
walk too far protested against this redivision many days prior to 
the election. 

Mr. CiiiNDBLOM. AA'ithout redress of grievances ? 

Mr. Grigsby. AVithout redress of grievances. In fact, it is way 
up in the backwoods, and they did not get a letter down to Fair¬ 
banks until long after election, and nothing could be done. 

Judge Bunnell is not to blame for that. Judge Bunnell is not to 
blame for what the commissioner did. His clerk sent out a general 
letter in which he cautioned commissioners not to establish precincts 
in which there, were not more than 5 or 6 votes, and one of his com¬ 
missioners say that there was a chance to make a record for economy, 
as many Alaskan officials do, and he abolished one precinct of 10 
votes and one of 21. 

Mr. Chindblom. In Alaska they try to establish economy? 

Mr. Grigsby. Some people do. They think they can make a hit 
with the department by cutting down expenses. I never followed 
that course when I was ‘in office, but spent all the Government money 
I legitimately could, and I never got criticized for it. It all depends 
on Avho is at the head of the department at any particular time—of 
the Post Office Department or any other department of the Govern¬ 
ment. But I know that in Judge AVickersham’s time there was a 
watchful eye kept upon the exchequer. Once in a while a fellow 
gets in who wants to make a record for economy, and here was a 
case where the election expenses had mounted up, and they had 
notice that the fund was running shy, and they had trouble with the 
department about it. 


244 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Bunnell is not a crank, but a reasonable man, and he approved the 
'letter which his clerk sent out cautioning election officials not to 
waste the money of the United States for unnecessary expenses, and 
he said that election precincts should not be established where there 
were less than 5 or 6 votes, and certainly you would not establish 
one where there are only 1 or 2 votes. Judge Bunnell is not guilty 
of any crime. 

Mr. CnixDBLOM. They have three judges and two clerks? 

Mr. Grigsby. Just in the towns; on the outside they have three 
judges, two of whom act as clerks. 

Mr. Elliott. What do you pay election officers up there? 

Mr. Grigsby. I do not know, $4 or $5 a day, I think. In the cities 
I think it is $5 a day. I think there is a limit put on it in this act. 
They establish a schedule of fees here for each of the judges of 
election who shall qualify and serve, and any person on election 
day and each of the clerks of election in an incorporated town is 
entitled to compensation of $5 for all services performed, that is one 
day of 24 hours, if it takes them that long to count. 

Mr. O’Connor. I fail to catch the point that you are making 
in regard to some fellows that kick about something, about some re¬ 
organization plan of the commissioner. 

Mr. Grigsby. I say that this fellow out there that was instructed 
to be careful about his exjienses might say, I had better look 
around and see where I can cut down expenses.” 

Mr. Hudspeth. The question was, you referred to somebody 
making a protest about this redivision. 

Mr. Grigsby. Oh, yes; the voters up there Avhen they got the 
notice that their voting precinct had been discontinued, sent a pro¬ 
test to the judge of the court and protested about redistricting of the 
recording district on the ground that it compelled them to go too 
far to vote. The judge did not get that until after election. That is 
in evidence- So they sat down and did not vote, all but tAvo of them 
Tavo of them actually did Avalk oA^er and Amte and the rest of them 
could liaA^e done so. It is not Avhat Ave Avould call a hardship in 
Alaska to make 14 to 10 miles a day and go back the same day, as 
far as that is concerned. 

Air. WiCKERSHAM. It Avas the same day they moved out of Cache 
Creek ? 

Air. Grigsby. It Avas the same day they moved out of Cache Creek, 
and they probably could not Avalk oA'er and back in one day, and it 
Avas not coiiA^nient to stay OA^er night. But there are hundreds of 
Amters in Alaska to-day that go Avithout their votes. 

But regardless of that, regardless even if this commissioner in his 
OAvn mind had the idea that you got 10 votes plurality doAA n there in 
1916, and he might keep some of them from coming up to vote, if he 
had a legal right to do that it Avould not result in throAving out these 
votes. They Avere not deprived of an opportunity to vote, such as 
other people living in the same localities had, and had to submit to 
the same inconvenience. Some men had to travel tAvo or three days 
to A'Ote up in your division. It depends on hoAV badly you Avant to 
vote. All you haA^e to do is to look in the record and count the pre¬ 
cincts and the Amtes. The judge of the court Avas not to blame for it. 
There Avas nothing crooked about it. No fraud about it. The only 


WICKERSHAM YS. SULZER (DECEASED) AND GRIGSBY. 245 

thing to consider is whether there was anything different in the situa¬ 
tion when this fellow makes an order and divides his district into 
precincts, establishes polling places, and appoints judges of elec¬ 
tion, etc., and then locks it up where nobody can see it for 30 days 
and then publishes it, or whether he enters it on the thirty-fifth day 
before and then publishes it. It did not affect anybody whether he 
did it one way or the other. It is a very peculiar statute [reading] : 

He shall issue an order 60 days before election. Such order and notice shall 
be given publicity by posting copies of the same at least 20 days before the date 
of the first election and 30 days before the date of subse(pient elections. 

Mr. O’Connor. Twenty-five days, was it? 

Mr. Grigsba\ Thirty-five days. The only thing that concerns us 
now is whether they got the notice. They did, because they gave 
notice- 

Mr. O’Conner. Wliat do you think that “ issue ” means in that con¬ 
nection ? 

Mr. Grigsby. Well, he issues an order. The* United States commis¬ 
sioner of Fortymile, in a cabin with nobody around, sits there and 
issues an order. It means he makes it, enters it. 

Mr. Chindrlom. The statute says he shall enter it in his book— 
“ Issue an order and enter it in his record.” 

Mr. Grigsby. “ In a book kept for that purpose.” He might lock 
it up in his safe. 

Mr. O’Connor (reading) : Shall give publicity by posting copies 
not less than 20 days.” 

Mr. Grigsby. Twenty days in the case of the first election and thirty 
days in the case of the second election. That is the point. By that 
order he made it inconvenient, we will say, for these people to vote 
who lived in those two precincts. They were discontinued. 

The Chairman. How large are these two precincts? What is 
their size? 

Mr. Grigsby. Well, I would say—I can not tell from the descrip¬ 
tion—I do not know the distances, but I suppose those recording con¬ 
tain 700 or 800 square miles or more, and you divide it into five and 
then into three voting precincts, and they might be 8 miles one way 
and 5 miles the other, or twice as much. They are large, and the 
people do not all live in one place. If the commissioner did not estab¬ 
lish Forty-Mile for the convenience of most of the voters, then he 
was negligent. Forty-Mile and Jack Wade are towns very close 
together, and these are in the one end of the division; 14 or 15 miles 
off is Moose Creek, Chicken, and Franklin. They are quite a dis¬ 
tance apart. 

Mr. Chindblom. Let me ask you this: These recording districts 
that are mentioned here in the election law are not the same record¬ 
ing districts authorized to be established by miners when they make 
a discovery ? 

Mr. Grigsby. No, sir. They have miners’ laws and regulations 
where the Government has not reached which are binding and have 
the force and effect of law when they are consented to; when a 
strike is made and there is sufficient population attracted to create the 
necessity for a recording district, a new stampede, then a new com¬ 
missioner is appointed and the boundary is defined by the district 



246 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

judge, and then the recording district is made, a district 100 miles 
square, or approximately, and that is divided into election precincts, 
and he has to describe them by these natural boundaries; there is no 
survey. He has to pick out well-known natural objects. 

Mr. O'Connor. Are there sections of Alaska that are not included 
in any recording district ? 

Mr. Grigsby. I think there are. In the northern parts of the Ter¬ 
ritory there must be. I could not say for sure as to that. But there 
is an uninhabited tract in Alaska, a part of Alaska, with very few 
people in it. At present from the northernmost point we never suc¬ 
ceeded in getting any returns. 

Mr. O’Connor. That is what I asked; are there any precincts from 
which you do not get returns? 

Mr. Grigsby. I recall that instance now, but we did not know 
whether an election was held or not. We never did get any returns. 
I could not say olfhand, but above the Yukon River, after you get 
off the tributaries of the Yukon, we never hear from that country. I 
suppose a good deal of it is not included in any precinct. 

Mr. WiCKERSHAM. There is a great deal of country that is not 
included in any precinct at all. 

Mr. Hudspeth. How far is it from where this United States com¬ 
missioner lived to the precinct that he abolished ? 

Mr. Grigsby. This man lives at Franklin and the records do not 
show—14 or 16 miles to Moose, and I guess about the same distance 
to Franklin, as some of the witnesses testified. 

Mr. Hudspeth. Let me ask you again, what means of communica¬ 
tion, if you know, did he have to notify these people in promulgating 
his order or publishing it up there, whatever the term is? 

Mr. Grigsby. By notices- 

Mr. Chindblom. The law provides that. 

Mr. Hudspeth. In public places. 

Mr. Chindblom. And also published in the newspapers. 

Mr. Grigsby. There is no newspaper there. 

Mr. Hudspeth. Did he post that 30 days before the election? 

Mr. WiCKERSHAM. If so, there would be proof in the return. 

Mr. Grigsby. Not necessarily. The order is a part of the election 
return and is not required to accompny them. He did it; there is 
no complaint that he did not. [Reading:] 

Which must be posted in three conspicuous places in each voting precinct. 

And these people, although they were considerable distances away, 
knew it, because they protested many days before election. 

Mr. Chindblom. It says three conspicuous public places. It 
might be a large oak or a big rock. 

Mr. Hudspeth. Or a signpost, or a cabin door, I guess. 

Mr. Grigsby. They get notice of it anyway. I do not know how 
it was. No complaint was made that it was not posted in a con¬ 
spicuous place. 

Mr. Chindblom. One must be posted at his office and three copies 
in three conspicuous public places, and one of these places shall 
be the polling place, and then he shall mail a certified copy of the 
notice to the governor of Alaska. And there is also publications to 
be made in newspapers. 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 247 


Mr. Grigsby. I see that you are just about ready to go, and I 
think I have very little to say on this and I do not want to start 
another subject. 

(Thereupon, at 5.50 o’clock p. m., the committee adjourned until 
to-morrow, Saturday, April 3, at 10 o’clock a. m.) 


Committee on Elections No. 3, 

House of Representatives, 

1/Vashington^ D. C., A'pril <5, 1920. 

The committee assembled at 10.30 o’clock a. m. A quorum was 
present. Hon. Cassius C. Dowell (chairman) presiding. 

The Chairman. Mr. Grigsby, you may proceed with your argu¬ 
ment. 

STATEMENT OF HON. GEORGE B. GRIGSBY, CONTESTEE— 
Resumed. 

Mr. Grigsby. Mr. Chairman and gentlemen, I will next take up the 
question of the soldier vote. Mr. Wickersham made the statement to 
this committee in response to a question that upward of 70 soldiers 
voted illegally in Alaska at the last general election for Mr. Sulzer. 

I have segregated his list of soldiers, which consists of 49 soldiers 
in the Regular Army and 29 or 31, I forget which, draft soldiers, 
who were concentrated at a camp in Fort Liscom, in the Valdez Bay 
precinct in Alaska. 

There were 16 soldiers who gave depositions in this case, and who 
testified for whom they voted. Eleven of those soldiers testified that 
they voted for Mr. Sulzer; five testified that they voted for Mr. 
Wickersham. In Mr. Wickersham’s brief he omits to charge himself 
with Clement C. Stroupe and James W. McConnell. 

The record shows that Clement C. Stroupe voted at Nulato, p-nd 
that at Nulato there were 10 votes cast for Sulzer and 4 votes cast for 
Wickersham, and none for the Socialist candidate. Mr. Stroupe 
w^as asked: Did you vote for Mr. Sulzer for Delegate to Congress 
from Alaska?” And he answered, ‘‘No.” The record shows that 
he voted, and consequently he must have voted for Mr. Wickersham. 
Mr. Wickersham conceded that he so voted the other day in his argu¬ 
ment. 

Donald H. Tyer testified that he voted for Mr. Wickersham, as 
did Whitman and Labrisky, and James W. McConnell, whom Mr. 
Wickersham does not mention in his brief, also voted for Mr. Wicker¬ 
sham. James W. McConnell testified that he voted in that election 
and testified that he did not vote for Mr. Sulzer; and no one else 
besides Mr. Wickersham got any votes at Nulato, where McConnell 
voted. You will find his testimony, I think, on page 320 of the record: 

Q. Did you vote for Charles A. Sulzer for Delegate to Congress from 
Alaska?—A. No. 

The same answer is made by Clement C. Stroupe- 

Mr. Wickersham (interposing). Look at Mr. McConnell’s answer 
to the preceding question. He said he voted at Barnesville, Ohio; 
he was not in Alaska at all at that time; he did not vote in Alaska. 



248 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Mr. Grigsby. Yes; I see; he voted in Barnesville, Ohio; I omitted 
to notice that. So I can not charge that vote to Mr. Wickersham. 

Mr. Chindblom. Whose vote is that you are speaking of ? 

Mr. Grigsby. James W. McConnell’s. 

Mr. Elliott. AVell, you had two votes there that you said Wicker¬ 
sham got. 

Mr. Grigsby. I noticed that one in a hurry and I got it wrong. 
As to the other one, Clement C. Stroupe testified that he voted at the 
election of November 5, 1918, for Delegate to Congress at Nulato, 
and that he did not vote for Mr. Sulzer; therefore he must have 
voted for Mr. Wickersham. That is on page 321 of the record. So 
that there were four soldiers that voted for Mr. Wickersham, and 
the testimony is that those four had no other residence in Alaska> 
as far as the record shows, except as soldiers in the Army. 

Mr. Chindblom. Why did this man testify if he did not vote in 
Alaska at all? 

Mr. Grigsby. Where did he testify? 

Mr. Chindblom. No; why did he testify? Did he testify to some 
other facts? 

Mr. Grigsby. No. He was supposed to have voted in Alaska, evi¬ 
dently, and it turned out that he did not vote there, according to his 
own testimony. 

Mr. O’Connor. Was the examination continued after he said he 
had voted in Ohio? 

Mr. Grigsby. It was an examination on written interrogatories, 
and that is the reason he went on and answered the rest of the 
question. 

Now, of the 11 who testified that they voted for Sulzer are the 
following legal voters, under the law, as I shall show it to you 
gentlemen when I get through with this list: William T. Barr, 
James W. Boon, M. H. Faust, and P. F. McQuillan. 

William T. Barr testified (record, p. 255) that he voted in Fort 
Gibbon, Alaska ; that he enlisted in the Army in January, 1917, at 
Fort Gibbon; and that he had resided in Alaska more than three 
years prior to November 5, 1918; that he enlisted two years before 
election day, 1918, and lived in Alaska three years before the elec¬ 
tion; and that he was a resident of Alaska when he enlisted; that 
he had resided in that voting precinct over a year before election 
da}^ That is all the evidence there is on that subject. 

James W. Boon testified- 

Mr. Chindblom (interposing). May I ask just a question there? 
Did he vote in the precinct where he lives ? 

Mr. Grigsby. Yes, sir. 

Mr. Chindblom. This first man, I mean. 

Mr. Grigsby. Yes, sir; there is no testimony that these soldiers 
did not vote in the precinct where they were residing. 

James W. Boon testified that he reenlisted in November, 1916; 
that he was a resident of Alaska when he reenlisted; that he had 
resided in Alaska for a period of five years prior to the election of 
November 5, 1918. That is all the evidence there is in the record 
with reference to his residence, his own testimony that he was a 
resident prior to his reenlistment, and had been a resident of Alaska 
for five years before election. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 249 


M. H. Faust has been a resident of Alaska for 15 or 16 years, 
according to his own testimony. He has reenlisted in Alaska several 
times. He testifies that he has had no other residence during that 
time; he has kept his family in Alaska; Alaska was his home. He 
was a noncommissioned officer for a long time, and finally he was 
commissioned as an officer in the Signal Corps, and was in Alaska 
and residing there when appointed. The authorities which I will 
read later will cover his case. 

P. F. McQuillan testified that he was out of the service and a resi¬ 
dent of Alaska for nine months before reenlistment. 

Those four votes which I have just named are legal under all the 
authorities. That leaves seven out of the eleven who voted for Mr. 
S'ulzer who were in Alaska only as soldiers. 

^Ir. CiiiNDBLOM. Let me ask you this: Is there a contention here 
that a residence of one year is required in Alaska ? 

Mr. Grigsby. Yes, sir. 

Mr. CiiiNDBLOM. You say that this last one lived in Alaska for 
nine months? 

Mr. Grigsby. He has been in Alaska a good deal longer time than 
nine months, but he was out of the service for nine months before 
his reenlistment, and the authorities do not require a man who re- 
enlists in a State or Territory to have been in the State or Territory 
more than one day before enlisting in order to acquire a residence 
wffiile in the service. 

Mr. Chindblom. Well, did he come to Alaska as a soldier orig¬ 
inally ? 

Mr. Grigsby. I will have to read his testimony in order to find out 
with certaint}^; it is on page 251 of the record. I think he was 
examined on written interrogatories and there was no cross-examina¬ 
tion. His testimony is as follows: 

Direct examination by Mr. Marshatx: 

Q. Your name is P. F. McQuillan?—A. Phillip F. McQuillan. 

Q. Mr. McQuillan, you are in the service of the United States Army, in -the 
Signal Corps?—A. Yes. 

Q. How long have you been in such service?—A. Altogether, about 22 years. 

Q. How long have you been continuously in the service? 

Mr. WiCKERSHAM. Wait a minute. Do not skip that last question. 

Mr. Grigsby (reading) : 

Q. Where did you enlist in the service?—A. In Rochester, N. Y. 

Q. How long have you been continuously in the service?—A. Since 1906. 

Q. If you have ever resided in Alaska at any time when you were not in the 
military service, please state when and for how long a period. A. I was out of 
the service and a resident of Alaska while out of the service for the period of 
about nine months. 

Q, You then reenlisted in the service and have been in the service ever 
since?—A. Yes. ^ ^ ^ ^ ^ 

Q For whom did you vote, and where, for the office of Delegate to Congress 
from Alaska on November 5, 1918?—A. I voted for Charles A. Sulzer, at Sitka, 
Alaska. 

The committee will notice that there is no objection made by any 
attorney as to his testifying, and no instruction given. That is from 
the record, page 251. It does not show how long he had been in 
Alaska immediately prior to the election, but his vote is presumed to 
be legal, to start with; and he had been in Alaska nine months prior 
to his reenlistment. 


250 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. Hays. He says he was a resident of Alaska nine months before 
his last enlistment. Now, how long a time has expired between the 
time of that enlistment and the casting of the vote? 

Mr. Grigsby. The testimony does not show. These are formal 
questions, propounded in writing, and he answered the questions. 
But the evidence tends to show that he was a resident of Alaska 
before his reenlistment. 

Mr. Chindblom. He does answer this question: “ How long have 
you been continuously in the service ? ” He answers that by saying, 
“ Since 1906.” 

Mr. Grigsby. Yes, sir; and then he contradicts that in the next 
answer by saying that he was out of the service and a resident of 
Alaska for nine months. 

Mr. Chindblom. That wmiild be an exception to the continuance 
of his service in the Army ? 

Mr. Grigsby. Yes; it must have been. 

Mr. Hays. My question was intended to find out whether the nine 
months which he claimed as residence in Alaska previous to his last 
enlistment, added to the period of that enlistment, would make a 
year. 

Mr. Grigsby. Well, it does not affirmatively show that; but on all 
the evidence you can judge that he was a resident for a longer period 
than that. 

Now, if I am right about these 4 soldiers, out of the 11 that Judge 
Wickersham claims voted for Mr. Sulzer, that leaves only 7 who are 
not shown to have been legal voters, only so far as their own testi¬ 
mony is concerned; but there is other testimony showing the fact 
that most of them married in Alaska, and rented homes, or pur¬ 
chased homes, which would make them residents. I will come to that 
later, in discussing the 7, in connection with the testimony of Noakes 
and others. 

Now, there is another vote charged to Sulzer, that of H. R. Mor¬ 
gan. Mr. Morgan did not give a deposition, but made an affidavit in 
Seattle, the making of which affidavit was made a condition of his 
discharge; he was refused a discharge until he would make the 
affidavit; and he made an affidavit that he voted for Mr. Sulzer; and 
this affidavit was offered in evidence in rebuttal in this case. We 
had no opportunity to cross-examine, because he did not testify, and 
his evidence is given in rebuttal and should not be considered by this 
committee; it is not proper rebuttal; it is part of the contestant’s 
case in chief. 

Mr. Chindblom. Well, was it a deposition taken on notice ? 

Mr. Grigsby. No, it was not; it was simply an affidavit offered in 
evidence by Mr. Wickersham, or some other witness of his when he 
gave his evidence. The affidavit was simply offered as an exhibit. 
Mr. Morgan was not on the stand, 

Mr. Elliott. That is the only way the affidavit was introduced, 
is it? 

Mr. Grigsby. Yes, sir. 

Mr. Chindblom. Is there other evidence in the record in the way 
of affidavits submitted as exhibits ? 

Mr. Grigsby. There is other evidence in the form of affidavits. 

Mr. Chindblom. Are there any offered by yourself? 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 251 


Mr. Grigsby. One. I will discuss that later, when I discuss my 
counterclaim. It was offered by my attorney. There is another 
soldier vote claimed to have been cast for Sulzer, Herman Du Marce. 
The record shows that a man of that name voted at Copper Center, 
for Mr. Sulzer; every vote there was for Sulzer. I have found one 
authority in the Digest of Contested Election Cases; I do not remem¬ 
ber wdiere it is now; I will call it to your attention later—^to the 
effect that there must be something to supplement the poll books in 
support of identity; that identity of name alone does not create a 
presumption of identity of person. And if you follow that rule, 
you can not count this vote; if you find that the identity is sufficiently 
proved, that should be charged to Mr. Sulzer. 

The Chatrmax. Let us see if I understand you correctly: Your 
proposition is that the mere fact of a name appearing on the polls 
as having been voted under does not identify the voter? 

Mr. Grigsby. Yes. 

The Chairman. It requires affirmative evidence of the identifica¬ 
tion of the voter ? 

Mr. Grigsby. That is correct. 

The Chairman. All right; I do not want you to go into that more 
fully now. 

Mr. O’Connor. Suppose there was only one person by the name 
of Smith, for example, on the poll book. 

Mr. Grigsby. Here is a case that will illustrate: Here is a man 
that was down at Valdez, or Juneau, and the evidence in the case is 
that Herman DuMarce voted at Copper Center. Now, I do not 
know of any other evidence—and if I am wrong Mr. Wickersham will 
correct me—with regard to this vote at Copper Center; I do not 
recall any other evidence. And Herman DuMarce was in the Signal 
Corps. 

The Chairman. Is there a man in the Signal Corps by the name of 
Herman DuMarce? 

Mr. Grigsby. Yes; and Herman DuMarce voted. 

The Chairman. And Herman DuMarce voted. Now, the question 
is, from your standpoint, is he properly identified by the evidence ? 

Mr. Grigsby. Yes, sir; that is the exact point. 

Mr. Chindblom. Well, w^hat does the record show with reference 
to DuMarce voting ? Did he vote in that precinct ? 

Mr. Grigsby. The poll book of Copper Center shows that Herman 
DuMarce voted at Copper Center. 

Mr. Chindblom. Well, he testified that he lived at Juneau, did he? 

Mr. Grigsby. No, sir; I said he might have lived at Juneau. 

Mr. Chindblom. Well, who testified that Du Marce was a soldier? 

Mr. Grigsby. There is a sworn list containing his name, sworn to 
by Col. Lenoir; so that it is in evidence that he was a soldier in the 
Signal Corps. 

Mr. Chindblom. In other words, all that there is in evidence on 
the point is that a man by the name of Du Marce was in the Signal 
Corps, and also that a man by the name of Du Marce voted ? 

Mr. Grigsby. That is all that I know. 

Mr. Chindblom. The tw^o names being identical? 

Mr. Grigsby. That is the point. 

Mr. Elliott. Is there any evidence here that this Du Marce was 
stationed in that precinct where he voted? 


252 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Mr. Grigsby. That is what I was trying to find. 

Mr. WicKERSHAM. Yoii will find the list on page 343 of the record. 

Mr. Grigsby. I am looking for the list showing where he was sta¬ 
tioned, on page 56; that is the only list showing where he was sta¬ 
tioned. 

Mr. WicKERSHAM. Oil page 343 is the roster of the Signal Corps. 

Mr. Grigsby. Well, that gives where they Avere stationed on 
December 31, 1916. This list that you refer to, Mr. Wickersham, 
is the “ Eoster of Depot Company F, Signal Corps, December 31, 
1916, giving stations and duties.” Now, we want to know where 
he was on November 5, 1918. 

Mr. Chindblom. Where is his name on the roster? AVhat page of 
the roster is it on? 

Mr. Grigsby. I can not find it. 

Mr. Chindblom. Hoav is the name spelled? 

Mr. Grigsby. Herman Du Marce. 

Mr. Elliott. I do not believe his name is in this roster. 

Mr. Grigsby. I do not think it is either; but if it is, it shows where 
he Avas stationed on December 31, 1916. 

Mr. Chindblom. Let us determine now Avhether it is in this list 
or not (examining book). 

Mr. Grigsby. His name is in the list on page 55, giving a list of 
soldiers and their original places of enlistment; it does not shoAv 
Avhere he Avas stationed—here it is, on page 56, showing that he Avas 
stationed at Fort Liscum, which is in the V aldez Bay precinct. 

Mr. Hudspeth. When? 

Mr. Grigsby. On December 31, 1918. Noav, where he was on 
NoA^ember 5, 1918, we do not knoAv, unless that Avas the man Avho 
A^oted at Copper Center. 

Mr. Chindblom. That is shown in Exhibit No. 1, in that “Eoster 
of Signal Corps officers and enlisted men in Alaska, December 31, 
1918,” on page 56 of the record? 

Mr. Grigsby. Yes, sir. 

Mr. Chindblom. And it shoAvs Herman Du Marce stationed, 
December 31, 1918, at Fort Liscum; present location. Fort Liscum? 

Mr. Grigsby. Yes, sir. 

Mr. Chindblom. And there is a column Avhich is headed, “Voted,” 
and there is nothing following his name in that column? 

Mr. Grigsby. Nothing in that column. This list, according to the 
evidence, was made up from the records of the War Department and 
the responses of the soldiers to the question Avhether they voted or not. 

Mr. Elliott. Is Fort Liscum in the Copper Center precinct? 

Mr. Grigsby. No, sir. Fort Liscum is two or three days’ journey 
from Copper Center. 

Mr. Wickersham. It is about 65 miles. 

Mr. Grigsby. Yes, across the sea; but the way you Avould go would 
be over to Cordova, by boat, and then by a train up to Chitina, and 
then by automobile on to Copper Center. 

Mr. Wickersham. Well, the trail runs through from Valdez? 

Mr. Grigsby. Yes, the trail runs from Valdez; but it was blocked 
then. 

Mr. Wickersham. What has become of the telegraph line up. 
there ? 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 253 


Mr. Grigsby. There is no possible way of finding out exactly 
whether the man voted at Copper Center; the only question is 
whether that was the same man or not; there is nothing in his being 
in the vicinity, because he was practically as far off as if he was in 
another country. 

Mr. CiiiNDBLOM. Let me ask you this question: On pages 343, 
344, 345, and 346, there is another list, which is marked, “P^xhibit N,” 
a roster of soldiers. Is there any way of finding if Du Marce was on 
that list? 

Mr. Grigsby. That is the list for 1916. 

Mr. Chindblom. Then the list on page 56 is the only place where 
Du Marce’s name occurs; is that correct? 

Mr. WicKERSHAM. And page 55 also; page 55 is the certified list 
from the War Department. 

Mr. Grigsby. I do not know what that certified list on page 55 pur¬ 
ports to be. I have heard a lot about a list of 40 men in this case. 
There is a list of 40 men, and it is supposed to be a list of 40 men that 
voted in Alaska; but there is nothing in the record to show that that 
list of 40 men voted, except by tracing down the record and finding 
out whether the man voted or not in each case. Some of them, I 
think—we never have been able to find out whether they voted or not; 
some of them testified that they vot^d; and as to some of them, the 
record shows that they voted at Valdez. 

Mr. Chindblom. Well, I want to call your attention to the fact that 
the list on page 55 is preceded by this heading: ‘‘ The records on file 
in the office of the Adjutant General of the Army show date and place 
of original enlistment and residence at date of original enlistment as 
follows in the cases of the soldiers mentioned.” 

Mr. Grigsby. Yes; that is all it says. 

Mr. Chindblom. So that is all it purports to show. The name of 
Herman DuMarce appears there with the date of original enlistment 
given as February 24, 1915; place of original enlistment, P'ort Snell- 
ing, Minn.; residence, Veblen, S. Dak. 

Mr. Grigsby. I have stated all the evidence that I have been able 
to find on the question of identity. 

So, not charging McConnell to Mr. Wickersham, leaves 4 that 
voted for Mr. Wickersham; 11 that voted for Mr. Sulzer, 4 of 
whom the evidence shows were legal voters in any aspect of the case, 
according to the authorities. Of course, I claim that they all are legal. 

But, taking the other view, that seven of them were illegal voters, 
four illegal voters voted for Mr. Wickersham, which makes a gain for 
Mr. Wickersham of three votes of the soldiers who testified as to how 
they voted. If DuMarce is allowed, it makes a gain for him of four 
votes. 

Now, there were seven soldiers whose depositions were taken, who 
refused to tell how they voted; and if the committee follows the rule 
adopted in the last contest—if it is shown that those seven are illegal 
voters, the committee would pro rate them and charge them to each 
candidate according to the vote that the candidate received in that 
precinct. 

But the evidence shows that they were legal voters, all hut one. 

Beattie testified that he was a resident of Alaska; that he voted in 
the election on November 5, 1918; and that he was a resident of 


254 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Alaska for five years prior to November 5, 1918; he voted at Fort 
Gibbon. That is all the evidence shows about him. 

Mr. Elliott. But does the record show that he voted at the place of 
his residence ? 

Mr. Grigsby. Yes, sir. This was taken on written interrogatories. 
Of course, Judge AVickersham will say “that is true, but it is not 
true ”; that he simply reenlisted. But the evidence in this case 
shows that when he reenlisted in 1917 he was a resident of Alaska.- 
It does not make any difference how long he had been a resident; 
one day would be sufficient, according to the authorities which Mr. 
AAhckersham cited you gentlemen himself; but he did not read all 
there was. Now, that is Beattie’s testimony. 

J. M. Campbell testified that he was a resident of Tanana and had 
resided in Alaska for six years prior to November 5, 1918; that he 
voted in the precinct of his residence, Tanana. 

D. M. Hocker testified that he enlisted in Columbus, Ohio, in 
1914 and came to Alaska in August, 1914, and lived in Fairbanks 
for five years and drew reenlistment pay after July, 1917; he would 
have been in the reserves but for the war. He enlisted for seven 
years, three of which were to be active service and four years in the 
reserves; he was not to be called upon except in case of war; he had 
perfect liberty to go where he pleased. He married in Alaska and 
his wife OAvns her home and he is there yet. Now, under the authori¬ 
ties, his reenlistment, marriage, and owning of a home make him a 
legal A'Oter there. 

Mr. Chindblom. Let me ask you this: AA'as that a reenlistment? 
Is not the original enlistment three years Avith the colors and four 
years AAuth the reserA^es? 

Mr. Grigsby. That is Avhat I said. 

Mr. Chindblom. AVell, does not the original enlistment continue 
all of that time, or is it a reenlistment ? 

Mr. Grigsby. It is an original enlistment of three years in the 
active service and four years in the reserves, and after the original 
enlistment in ths actiA^e service he draAvs reenlistment pay; and so 
far as his status in the Army is concerned he is graded as liaAung re¬ 
enlisted ; he is entitled to A^ote: but aside from that the other actions 
of this man are evidence of his citizenship in Alaska. 

Mr. Chindblom. You do not mean citizenship; you mean resi¬ 
dence. 

Mr. Grigsby. Residence; yes, sir. 

John E. Pegues enlisted in 1915 at Fort Gibbon .and voted at Fair¬ 
banks. I want to discuss his testimony later. His testimony shoAved 
that he Avas a resident of Alaska Avhen he voted. 

L. G. Selk came to Alaska June 11, 1912; after staying there a 
Avhile, he AVent outside and enlisted on December 16, 1913, at Fort 
LaAvton. AA^asli.; that is about a year and six months after he first 
AA^ent to Alaska. He testifies that he Avas outside about a year. He 
resided in Tanana, Alaska, since September, 1915, and has resided 
there ever since, and voted at the 1916 and 1918 elections; probably 
he reenlisted; he must have done so in vieAv of his statement that 
he is a soldier. 

H. B. Stenbuck refused to ansAver, no instruction or objection 
being given him. He cross-examined himself, and said that he- 


WICKERSHAM VS. SULZER (DICEASED) AND GRIGSBY. 255 

voted at Kichardson, Alaska. I ^Yant to read you his testimony, 
because some of the authorities will include his case: it is on paffe 
olT or the record, as follows: 

Direct examination. 

Q. State your name, af?e, and occupation.—A. Herman B. Stenbiick; 27 years, 
tele^-raph operator; Si^mal Corps. 

Q. Were you a soldier in the United States Army November 5, 1918?—A. Yes. 

Q. When and where did you enlist prior to November 5, 1918?—A In 
Chicago, November 1, 1915. 

Q. Was you a resident of Alaska when you so enlisted?—A. No. 

Q. Did you vote at the election on November 5, 1918, for Delegate to Con¬ 
gress from Alaska?—A. Yes. 

Q. IVliere did you vote?—A. In Fairbanks, Alaska. 

Q. Did you vote for Charles A. Sulzer for Delegate to Congress from Alaska 
at said election ?—A. I refuse to answer that question. 

Then comes cross-examination of Herman B. Stenbuck; I said it 
was “ by ” him, but it was not. He says: 

Q. How long had you resided in Alaska prior to November 5, 1918?—A. 
About two years and six months. 

Q. How long had you resided in the precinct where you voted prior to said 
date?—A. About one year. 

Q. How old were you when you enlisted in the United States Armv?—A. 
Twenty-three years old. 

Q. Had you ever voted before you enlisted in the Army?—A. No. 

Q. Did you have a voting residence at any place in the United States outside 
of the Territory of .Xlaska at the time of your enlistment?—A. No. 

Q. What was your purpose in coming to Alaska?—A. To better my condi¬ 
tion from a tinancial standpoint. 

Q. IVas it your intention to remain in Alaska when your enlistment ex¬ 
pired?—A. Yes. 

Q. Were you desirous of securing a position as telegraph operator with the 
Alaska Railroad when it was completed?—A. Yes; if it did not take too 
long to complete it— 

That is a pretty good answer, too. 

Q. When you came to Alaska did you intend to make Alaska vour home?— 
A. Yes. 

Now, it is in evidence that these Signal Corps’ boys came to 
Alaska at their own request; it is a matter of selection with them; 
and they are allowed to stay there as long as they want; it is a 
selected service; and tliis man swears that when he came to Alaska 
his purpose Avas to better his condition from a financial standpoint; 
that it Avas his intention to make it his home; and he expected to 
stay there after his service Avas completed. 

I Avill submit to the committee authorities on that question. 

In Richardson^ Avhere he voted, if you should throAv out his Amte— 
!Mr. Sulzer got eight Amtes, and Mr. Wickersham got eight Amtes— 
there is no eAudence as to hoAv he voted; and nobody objected to his 
testifying; and yet the contestant claims that that Amte should be 
charged to ^Ir. Sulzer. I have given you all the evidence there is on 
the subject. So Mr. IVickersham can gain nothing from this man. 

IT. G. IVescott was examined at Nulato, on Avritten interrogatories, 
and Avas notified that he need not answer the question as to Avhom 
he Amted for, and he made no ansAver; he neither refused to answer, 
nor said anything else; so he is in the same position as if he had 
declined to ansAver; and the evidence shoAvs that he Avas at Nulato 
as a soldier only, so far as the record shoAvs anything on the subject. 

Mr. CiiiNDBLOAi. What page of the record is that ? 



256 WICKERSHAM VS. SULZER (DECEASED) A'^J) GRIGSBY. 


Mr. Grigsby. Page 321. 

Mr. Hudspeth. Who notified him that he did not have to answer? 

Mr. Grigsby. These were written interrogatories Avhich were sent 
down the river from Fairbanks, because nobody could go down 
there; they were prepared by the attorneys for both parties; and 
the question was asked: 

Did you vote for Charles A. Siilzer for Delegate to Congress from Alaska? 

And then the record says: 

Contestee objects to question and instructs witness that he can not be re¬ 
quired to disclose name of candidate voted for unless he wants to. 

And he did not answer. Most of them that refused just said, “ I 
refuse to answer.” This one is in the same categorjq and there is 
no evidence as to how he voted. The bare objection or instruction 
is no evidence. There is not a case or an authority that says that 
an objection made by an attorney in a case of this kind is any evi¬ 
dence. There are a good many reasons why a witness might not 
disclose how he voted, besides the fact that somebody tells him he 
need not do so. That is not evidence. 

Mr. Chixdblom. Have 5^11 any authority, as advanced by the con¬ 
testant, that activit}^ on the part of one of the parties to the elec¬ 
tion, as in this case, on the part of the contestee, seeking to avoid 
disclosure of the facts with reference to a proper vote, might be 
considered as tending toAvard showing a certain .state of facts? 

Mr. Grigsby. No; there are no authorities that I have been able 
to find on one side or the other of that question. There are politi¬ 
cal activities, or the opposition of challengers at the polls, and the 
urging of a man to vote at the polls—that has been admitted as 
worthy of consideration; but any activity to keep an^^body from 
answering or to procure his answer—there are no authorities on 
that that I have been able to find; and Mr. Wickersham has cited 
none. 

But here you have the bare fact; and the authorities do hold 
that if a voter is a legal Yoter he can not be required to answer, 
and if there is any doubt about the legality of his vote he can not 
be required to answer. So that the man simply stands on his legal 
rights to preserve the secrecy of the ballot. And the mere fact that 
the attorney for one of the parties instructs him as to Avhat are his 
strict legal rights, and tells him the truth about it, can not pos¬ 
sibly support a presumption that the man voted for the candidate 
that the contestant claims he did or seeks to prove that he did. Any 
other rule Avould not be reasonable. It would be easy to put a lot 
of soldiers on the stand and instruct them to refuse to answer. Mr. 
Wickersham could go to one of his supporters and say, “ Here 
you do not have to answer Avhen you go on the stand. I will ask 
you how you voted, and you just say, ‘I refuse to ansAA^er’; and 
then the committee doAvn in Congress Avill take that as meaning 
that you voted for Mr. Sulzer, because I took your deposition? ” 

The only one of these boys up at Nulato that did ansAver testified 
that they did not vote for Sulzer; I do not think there Avas more 
than one. 

Now, HoAvard Wescott is in the category of a man Avho refused to 
ansAver, and if you throAv out any soldier votes you Avill have to throw 
his out. Mr. Sulzer carried Nulato by 10 to 4; so that a fraction of 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 257 

that vote would have to be charged to Mr. Sulzer, if you can count 
fractions of a vote; I do not think you can. I do not think a frac¬ 
tion of a vote would swing an election, if an election was a tie; I 
think it would take a full vote to do that; perhaps you could add 
fractions; I do not know about that. 

Of the seven soldiers who refused to answer, there is but one who 
was an illegal voter, and he does not add anything to Mr. Wicker- 
sham’s vote, because the vote for Nulato was 10 to 4; four-four¬ 
teenths of that vote would have to be charged to Mr.- Wickersham, 
and ten-fourteenths of it to Mr. Sulzer. That is possibly an illegal 
vote; the others are residents. 

Judge M ickersham has a list of soldiers who refused to answer 
last May at Valdez, before he filed this contest, at a time when he 
had mailed a petition to the Clerk of the House of Representatives 
which was not authorized by law, and at a time when he liad no more 
business to inquire into the secrecy of their ballots than you gentle¬ 
men, or anybody else. These soldiers not only refused to answer, but 
refused to respond to their names. Th^ are: Harry Shutts, H. R. L. 
Noaks, Emil Lains, Alex. A. Kott, Rudolph Elmquist, Chas. A. 
Agnetti, W. J. Cuthbert, T. E. Griffith, Burr M. Snyder, Harry G. 
Clifton, Wm. R. Rogers, C. R. Odle. 

Up at Fairbanks, the attorney for Mr. Wickersham went before 
the district judge. Judge Bunnell, about the same time, and tried to 
get him to issue subpcenas in his purported contest, and Judge Bun¬ 
nell rendered an opinion, which is in print, and of which I have a 
copy, and it is very clear, and I would like to put it in the record 
at this time, so that you gentlemen will have it before you. 

The Chairman. That merely is a statement of the law, is it not ? 

Mr. Grigsby. It is merely a statement of the law. 

Mr. Chindblom. Well, more correctly, it is Judge Bunnell’s opin¬ 
ion of the law. 

Mr. Grigsby. Yes, sir. Judge Bunnell recites that the attorney for 
Mr. Wickersham thought that he ought to issue the depositions and 
hear the case; because it would be better for the depositions to be 
taken before the district judge than before a notary, so he could 
pass on legal objections. 

But Judge Bunnell refused to take the depositions; he would 
not have been sitting as a court if he had taken these depositions; 
he would have been sitting the same as a notary sits—or any other 
magistrate that is authorized to take depositions in these contest 
cases. He takes them in a notarial capacity, the same as a notary 
does; he has the same authority and no more; it is not a court pro¬ 
ceeding. 

But as a judge, knowing the law, he saw that there was no author¬ 
ity of law to take the depositions in any contest, except one that 
was commenced according to law; and he said that a contest had 
not been so commenced; his opinion is very clean on the subject. 

Judge Wickersham’s attorney, however, wanted Judge Bunnell 
accused of all kinds of election frauds. Judge Wickersham’s attor¬ 
ney seems to have had sufficient faith in Judge Bunnell to want the 
depositions taken before him, so that he could overcome the legal 
objections. Judge Bunnell is now being held up by the Judiciary 
Committee. 

181741—20-17 


258 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY, 


DECISION OF DISTRICT COI^KT, FOURTH JUDICIAL DIVISION. ON APPLK'ATION TO ISSUE 
SUBPCENAS IN RE WICKERSHAM CIVIL NO. 2454. 

In the district court for the Territory of Alaska, fourth judicial division: 

In the matter of application of .Tames Wickersham for issuance of sub¬ 
poenas under section lid, Revised Statutes of the Ignited States, No. 2454. 
Decision and order. 

The ptition herein is as follows: 

“ In the matter of application of .Tames Wickersham for issuance of sub- 
jioenas under section 110 Revised Statutes of the Ignited States, No. 2454. 
Petition. 

To Hon. (’harles E. Kunnell, district jud^e, division 4. Alaska: 

“ Comes now your petitioner, .Tames Wickersham, by his attorney, Morton 
E. Stevens, and respectfully shows to the court as follows: 

“ 1. That at a general election held in the Territory of Alaska on November 
5, 1918, your iietitioner was a candidate for election to the office of Delegate 
to Congress on the Republican ticket and one Charles A. Sulzer was a candi¬ 
date for said office on the Democratic ticket. That the said Charles A. Sulzer 
is now deceased, and this proceeding is therefore ex parte. 

“2. That on or about the 17th day of April, 1919, the canvassing board, 
created by law to canvass the returns of said election, certitfied that said 
Charles A. Sulzer had been duly elected at said election. 

“8. That your petitioner is now contesting the legality of said election and 
the validity of said certificate in proper proceedings before the House of Rep¬ 
resentatives of the United States, and for the purpose of said contest desires 
to obtain certain testimony concerning said contested election, and desires to 
examine under oath respecting the said contested election the following-named 
persons stationed at Fairbanks, Alaska, who were at the time of said election 
enlisted men in the military service of the United States and voted at said 
election, and whose right so to do is, in said contest, questioned, viz, John E. 
I’egues, Herman B. Stenbuck, E. D. Whittle, and Durwood M. Hocker, and your 
petitioner desires the issuance of a writ of subpoena directed to each of said 
persons to attend, for said examination, before the honorable judge of said 
court on the 21st day of May, 1919, in the district court room at the courthouse 
in Fairbanks, Alaska, at the hour of 2 o’clock p. m. of said day, then and there 
to be examined respecting said contested election, pursuant to the provisions 
of section 110 et seq. of the Revised Statutes of the United States. 

“ And your petitioner will ever pray, 

“ Morton E. Stevens, 

Attorney for Petitioner. 

u 'pfyfiiffry of Aluska, ss: 

“Henry T. Ray, being first duly sworn on oath, deposes and says: That he 
is the agent of the petitioner herein, and that he has heard read the foregoing 
Iietition, and knows the contents thereof, and the facts therein stated are true 
as he verily believes. 

“ Henry T. Ray. 

“ Subscribed and sworn to before me this 14th day of IMay, 1919. 

[seal.] “Cecil H. Clegg, 

'‘Notary l*ahlie in and for Alaska. 

“ My commission expires October 31, 1919.” 

(hiapter 8 of the Revised Statutes, sections 105 to 130 and amendments 
thereto, c(>vers the subject of a contested election for a seat in the House of 
Representatives in so far as Congress has determined the same by legislative 
enactment. Under the Constitution of the United States each House is made 
“ the judge of the elections, returns, and qualifications of its own Members,” 
and in order to correctly determine the merits of a contested election the 
House of Representatives has the power to prescribe such rules of procedure 
as will in its judgment best subserve the ends of justice and determine the 
matter as of right between contestant and coutestee, always bearing in mind 
the fact that the people of the district “ are the real parties in interest.” 

On the 5th day of November. 1918, a general election was held in the Terri¬ 
tory of Alaska for the purpose of electing a Delegate to Congress from Alaska, 
members of the Territorial legislature, and four road commissioners. All of 
the returns from the several i)recincts were not received by the canvassing 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 259 


board until about the 16th day of April, 1919. Thereafter and on the 17th day 
of April, 1919, the canvassing board declared Charles A. Sulzer elected Dele¬ 
gate to Congress from Alaska. The said Charles A. Sulzer died on the 15th: 
day of April, 1919, and to fill the vacancy caused by Mr. Sulzer’s death the 
governor of the Territory has called a special election to be held on the 3d 
day of June, 1919. 

Section 110 of the Revised Statutes under which the petitioner, by his agent, 
is ai)pearing provides: 

“ When any contestant or returned Member is desirous of obtaining testi¬ 
mony respecting a contested election, he may ai)ply for a subpoena to either 
of the following orticers, who may reside within the congressional district in 
which the election to be contested was held: 

“ First. Any judge of any court of the United States. 

“ Second. Any chancellor, judge, or justice of a court of record of any State. 

“ Third. Any mayor, recoj-der, or intendent of any town or city. 

“ Fourth. Any register in bankruptcy or notary public.” 

This section must be construed in connection with the plain provisions of the 
following sections: 

“ Section 105. Whenever any person intends to contest an election of any 
Member of the House of Representatives of the United States he shall, within 30 
days after the result of such election shall have been determined by the officer or 
board of canvassers authorized by law to determine the same, give notice, in 
writing, to the Member whose seat he designs to contest, of his intention to con¬ 
test the same, and in such notice shall specify particularly the grounds upon 
which he relies in the contest. 

“ Sec. 106. Any Member upon whom the notice mentioned in. the preceding 
section may be served shall, within 30 days after the service thereof, answer such 
notice, admitting or denying the facts alleged therein, and stating specifically 
any other grounds upon which he rests the validity of his election; and shall 
serve a copy of his answer upon the contestant. 

“ Sec. 107. In all contested-election cases the time allowed for taking testimony 
shall be 90 days, and the testimony shall be taken in the following order: The 
contestant shall take testimony during the first 40 days, the returned member 
during the succeeding 40 days, and the contestant may take testimony in re¬ 
buttal only during the remaining 10 day^ of said period. 

“ Sec. 108. The party desiring to take a deposition under the provisions of this 
chapter shall give the opposite party notice in writing of the time and place 
when and where the same will be taken, of the name of the witnesses to be ex¬ 
amined and their places of residence, and of the name of an officer before whom 
the same will be taken. The notice shall be personally served uix)n the opposite 
party, or upon any agent or attorney authorized by him to take testimony or 
cross-examine witnesses in the matter of such contest if by the use of reasonable 
diligence personal service can not be made, the service may be made by leaving 
a duplicate of the notice at the usual place of abode of the opposite party. The 
notice shall be .served so as to allow the opposite party sufficient time by the 
usual route of travel to attend and one day for preparation, exclusive of Sun¬ 
days and the day of .service. Testimony in rebuttal may be taken on five days^ 
notice. 

“ Sec. 111. The officer to whom the application authorized by the preceding 
.section (Sec. 110) is made shall thereupon issue his writ of subpoena, directed 
to all such witnesses as shall be named to him, requiring their attendance before 
him at some time and placed named in the subpoena in order to be examined 
respecting the contested election. 

“ Sec. 121. The testimony to be taken by either party to the contest shall be 
confined to the proof or disproof of the facts alleged or denied in the notice and 
answer mentioned in sections 105 and 106. 

“ Sec. 122. The officer shall cause the testimony of the witnesses, together with 
the questions proposed by the parties or their agents, to be reduced to writing 
in his presence and in the presence of the parties or their agents, if attending, 
and to be duly attested by the witnesses respectively. 

“ Sec. 125. The notice to take dei)ositions, with the ])ro<)f or acknowledgment 
of the service thereof, ;md a coj)y of tiie subpoma, where any has been served, 
shall be attached to the depositions when completed. 

“ Sec. 126. A copy of the notice of contest, and of the answer (»f the returned 
Member, shall be prefixed to the depositions taken and transmitted with them to 
the Clerk of the House of Representatives.” 


260 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Sections 110 (o 130, inclusive, of the UeviseO Statutes contain no i>rovisions 
to meet tlie i)resent emerjjency. If they did, tlie petitioner would avail himself 
of them. He does not comply with section lOo, because in the very nature of 
thin.ii's it is impossible for him to do st). He can not ** j^ive notice, in writinj*', to 
the INIemher whose seat he desijjuis to contest, of his intention to contest the 
same ” when the one who would have become a INIemher, had he lived, died two 
days before the canvassing hoai*d determined the result of the election. 

How can it he said that the death of him who would have been the contestee 
had he lived abrogates the statutes and confers upon the petitioner herein the 
privilege of initiating the proceeding herein styled “ex parte”? This must he 
the view taken by the petitioner, for the last sentence of the first paragraph of 
the petition reads: “That the said Charles A. Sulzer is now deceased, ami this 
proceedings is therefore ex ))arte.” 

No officer mentioned in section 110 is authorized to undertake to establish a 
rule of procedure to supplement the existing law'; nor, on the other hand, 
should he follow a course of action wholly unauthorized. Undoubtedly the 
House of Representatives will, as soon as it is advised of the present emergency, 
determine, l)y virtue of its inherent power, a rule of procedure, if such he neces¬ 
sary, wdiereby all rights of the petitioner will he entirely safeguarded. (Con¬ 
gress will convene in .special session on May 19, 1919.) 

Counsel for petitioner states that the petition is presented to the .ludge of this 
court upon telegraphic request by petitioner to his agent, Henry T. Ray. He 
insists that, since there is no contestee. suhpeenas should issue and testimony 
should he taken ex parte. Under what rule of reason or principle of law this 
contention is based, counsel does not state nor am I able to discover. Counsel 
indicates that petitioner’s contest \vas recently filed. The date is not given in 
the petition. Had Charles A. Sulzer lived and had he become a “ INIemher of 
Congress,” he w'ould have had 80 days after the .service upon him of notice of 
contest to answer such noti(*e and serve a copy of his answ'er upon the con¬ 
testant. No testimony w(Hdd have been taken prior to the serving of the answer 
unless perchance upon stipulation of contestant and contestee. The petition 
is unaccompanied by any notice of contest: there is no service, nor could there 
he at the present time; there is no i.ssue joined; there is no notice to take 
depositions with the proof or acknowiedgment of the .service thereof. No 
officer mentioned in section 110, in the event he should issue suhixenas and 
take testimony, could comply with the ju-ovisions of .section 121 in taking 
testimony, nor could he comply with sections 12.1 and 126 in transmitting the 
.^ame to the clerk of the House of Representatives. 

Counsel also states one »)f the reasons for petitioning to take testimony 
before the judge of this court is that certain legal questions could he determined 
by the court. Counsel must he under a misapprehension concerning the func¬ 
tions and duties of the officei’S mentioned in section 110 in the matter of taking 
depositions in contested-election cases. In re How'ell (119 Fed., p. 467) the 
court said, in passing upon an application for the production of papers under 
section 123, where notice of contest had been given to the contestee and where 
notice of application as above had been served upon contestee: 

“ The authority given by the section of the Revised Statutes referred to can 
not be questioned, and I can not refuse an application wdiich is brought within 
its terms. It is immaterial wdiether an issue has yet been made up or not, 
because if testimony w'ere being taken I would have no right to pass upon its 
relevancy or irrelevancy.” 

The statement “ it is immaterial wdiether an issue has yet been made up or 
not ” refers to the provision in section 123, reading: 

“ The officer shall have power to recpiire the production of papers.” 

If the House of Representatives shall prescribe a rule of procedure in keep¬ 
ing with petitioner’s contention and an application meeting the requirements 
thereof is presented to an officer mentioned in section 110, subpoenas should 
issue as a matter of course. 

It nece.ssarily follows from the foregoing that the application of the petitioner 
to the judge of the court, who is one of the officers mentioned in section 110, to 
issue subpoenas to the persons named in said petition to appear and testify at 
2 p. m. on the 21st day of May, 1919, must he denied, for the same is premature, 
and the officer is wdthout jurisdiction in the premises. 

Charles E. Bunnell, 

District Judge. 


Dated May 16, 1919. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 261 

In addition to the nine that I have named, there are C. E. Odle 
and H. R. I,. Noaks, who were in the Signal Corps, and voted at this 
mection, and Judge Wickersham did not take their depositions. Mr. 
Odle was present at Valdez on August 30, 1919, as were all of the 
others; they were either present or available there, or were at Cor¬ 
dova ; and every opportunity was afforded to Judge Wickersham to 
take the depositions, but he did not do so. 

Of the list of 40 that Judge Wickersham claims voted in Alaska, 
there were 23 who testified that I have covered; and the case of Her- 
rnan DuiVIarce is submitted to you, gentlemen, on a question of iden¬ 
tity ; he was not examined. Harry Morgan gave an affidavit. That 
makes 25. 

That leaves 15 out of the 40; and of those 40 the 11 whose deposi¬ 
tions Judge Wickersham did not take, bring it up to 36. Then there 
were some others, Ellison, Elmquist, and Siekers, Whittle, Craft, 
and Leonard in that list. 

Mr. M icKERSHAM. Wliittle’s deposition was taken, but it never 
reached here; it did not reach the Clerk of the House; Ave do not know 
Avhat became of it. 

^^Ir. Grigsby. Xo ; I do not eA'en knoAA" that it Avas taken, except 
that you say so, Judge Wickersham; I can not officially, for the pur¬ 
poses of this case, admit the truth of your statement. 

Mr. Wickersham. I never saAv that; but 1 Avas informed that he 
made one. 

^Ir. Grigsby. Xoav, I haA*e got to the end of that. Here are six 
soldiers. Ellison, according to-the election register, Amted at Gol- 
kana; a man of that name did; Ave do not knoAV Iioav he Amted; or 
Avhether he Amted at all; it Avas the same as the other case. The vote 
at Golkana was : Sulzer, 7; Wickersham, 5; therefore five-tAvelfths of 
that A^ote should be charged to Wickersham and seA^en-tAvelfths to 
Sulzer, if it Avas an illegal vote. 

As to Elmquist, Judge Wickersham Avas notified of his presence 
there, and did not take his deposition ; he Avas ahvays aA^ailable. These 
men Avere all in that vicinity all the summer. 

As to Searce, the evidence shoAved that he Avent to China ; I do not 
knoAv Avhere he is, or anything about him. Mr. Wickersham’s list 
says he has gone to China. 

As to Whittle, there is nothing in the record; so I can not discuss 
that. 

As to Craft, Mr. Wickersham's list shoAved that he Avent to Nome, 
and I think he did go to Xome; I do not knoAV Avhere he Avent, and 
the record does not sIioav it. 

Dr. Leonard Avas a post surgeon; I do not knoAv where he Avas; 
if he Avas a contract surgeon, he Avas entitled to vote; if he Avas a com¬ 
missioned officer, he Avas entitled to vote, if he Avas a resident of 
Alaska. There Avere four Regular Army soldiers Avho Amted at Fort 
Liscum, in the Valdez Bay precinct—McEAmy, Joseph Xewman, 
R. B. Hamilton, and Sam Campbell. Mr. Wickersham made no 
attempt to shoAV Iioav those particular men voted, because he figured 
out the percentage of the vote there in another Avay, and charges 23 
illegal Amtes to Sulzer and 7 to himself. 

The only one of these Avho testified as to Iioav he voted was Joseph 
Newman, avIio testified that he voted for Wickersham. He has been 
in the Regular Army all the time he has been in Alaska, and prob- 


262 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

ably reenlisted, although there is no direct evidence that he did. If 
he did not—if any of the voters are illegal, he is one of them; the 
length of time that he has been there, since 1912, affords a presump¬ 
tion that he reenlisted in Alaska. 

The other three cases were not gone into; the men were not ex¬ 
amined. Mr. Wickersham did not take their depositions, because he 
claims that all the voters in Valdez precinct who were soldiers should 
be thrown out, because they were not residents of the precinct. 

Now, the only evidence as to these men, Hamilton and McEvoy, is 
that they had been in the Kegular Army for some time; there is no 
evidence as to when they enlisted; there is opinion evidence that they 
came from the States, and came up to Alaska in the Army, but there 
is no positive evidence that they were not residents of Alaska for 
years prior to their enlistment, and no evidence as to hoAv they voted. 

Now, I have covered 49 soldiers; and according to the authorities 
which I shall present, if soldiers who have no residence in Alaska, 
except purely as soldiers are to be cast out—if their votes are to be 
rejected, then Mr. Wickersham makes a gain of 3 votes, and that is 
an absolutely conservative classification of these votes. 

Instead of 70 soldiers, as he claims, having .voted illegally for 
Sulzer, an absolutely fair classification of these soldiers—I will fur- * 
nish the committee a copy of this statement—shows just 3 votes, and 
those 3 may be legal. 

The Chairman. Now, that statement is upon the assumption which 
you suggest, that the soldier vote as a soldier vote is not to be counted. 

Mr. Grigsby, les, sir; where the soldier has no other residen resi¬ 
dence than as a soldier. 

Mr. Chindblom. That covers the 49 men in the Regular Army? 

Mr. Grigsby. The 49 men in the Regular Army; all the men in 
the Regular Army that are in his list. 

Mr. Chindblom. ^ ou say you will furnish a copy of that statement. 
Should not that statement go in the record? 

Mr. Grigsby. I thought it would be of use to the committee—— 

Mr. CiiiNDBLOM (interposing). Well, rather than have separate 
papers, so far as I personally am concerned, I would prefer to have 
it all in the printed document. 

Mr. Hudspeth. I think it should go in the record. 

Mr. Grigsby. I will have a copy of it made for the committee. 

The C hairmax. The statement will be inserted in the record at 
this point. 

(The statement referred to is as follows:) 


Soldici-H whose dci) 0 .sifions were taken and who testified for whom they voted. 


Voted for Sulzer. 

Place. 

Record 

pase. 

Voted for Wickersham. 

Place. 

Record 

page. 

Wm. T. Barr. 

Fort Gibbon.... 

2-55 

Clement Stronpe 


001 

205-206 

246 

64 

Ike A. Beale. 

Valdez. 

623 

D. H. Tver. . 

\T Q1/^ Ci’j 

Jas. W. Boon. 

Nulato. 

319 

H. W. Whitman 

V OrlLlCZ/ 

Sitka 

H. B. Conover. 

Sitka. 

253 

252 

H. Labi skip. 

Craig.. 

R. N. Cummins. 




M. Faust. 

Valdez 

71-76 

253 

251 

64-71 

60-61 

319 




G. B. Ha'vlev. 

Sitka... 




P. F. McQuillan. 





H. Van Wyck. 

Vaidez.. 




J. B. Looney. 

Seward.... 




J. P. Lake. 

Nnla.tn 
















































WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 263 

Eleven testified they voted for Sulzer and four testified tliey voted for AVick- 
ershani. 

Of the 11 wlio voted for Siilzei' tlie following were legal voters: AVilliain T. 
Karr, .Tames W. Boon, l\r. iraiist, P. F. McQnillan. 

A\ illiain T. Barr testified (i*ec., 2.^5) that he enlisted at T^)rt Gibbon, Alaska, 
in .Tannary, 1917; that he was a resident of Alaska when he enlisted; that he 
had resided in Alaska more than three years prior to November 5. 1918. 

.Tames W. Boon testified (rec., 319) that he reenlisted at St. IMiehael, Alaska, 
in November, 1916, and that he was a resident of Alaska when he reenlisted; 
that he resided in Alaska ])rior to November 5, 1918, for a period of five years. 

M. P^'anst, a resident of Alaska for manj" years. 

P. F. McQnillan testified (rec. 251) that he was out of the service and a 
resident of Alaska lor a period of nine months, and then reenlisted. 

Deducting the above four, to wit, Barr, Boon, Faust, and McQuillan, from 
those who voted for Sulzer. whose residence in Alaska, so far as the testimony 
shows, was only as soldiers in the Army, we have four of the same class who 
voted for Wickersham. 

If these votes are held to he illegal, then 3 votes should be deducted from 
Sulzer’s plurality. 

H. 11. iNIorgan voted at Nulato (rec. 684). Deposition not taken. An affi¬ 
davit of Morgan was introduced in evidence b.v Wickersham in rebuttal. No 
opportunity for cross-examination. Affidavit made under compulsion. 

H. Du Marce; The election register (rec. 337) shows that a man of the 
same name voted at Copper Center for wSulzer. There is no identification of 
the election register and no proper proof that H. Du Marce appears as one of 
the voters at Copper Center, except the purported copy of the election register. 

Kefused to answer in this contest; E. PI Beattie (rec. 2.55), Fort Gibbon; 
J. M. Campbell (rec. 256), Tanana ; I). M. Hocker (rec. 298), Fairbanks; .T. E. 
Pegues (rec. 301), Fairbanks; L. G. Selk (rec. 257), Tanana; H. B. Stenbeck 
(rec. 317), Richardson; Howard AA^'escott (rec. 321) Nulato (did not an.swer). 

PI E. Beattie (rec. 255) testified he was a resident of Alaska when he en¬ 
listed in 1917, and had been a resident for five years prior to November 5, 
1918. A^oted at Fort Gibbon. 

J. ]\I. Campbell (rec. 256) testified he was a resident of Alaska when he 
enlisted at St. Michael, February 11, 1915, and had resided in Alaska for six 
years prior to November 5, 1918. A'oted at Tanana. 

D. M. Hocker (rec. 298) testified he enlisted in Columbus, Ohio, in 1914; 
came to Alaska in August, 1914; lived in Fairbanks for five years; drew reen¬ 
listment pay after .Tuly, 1917; would have been in reserves but for war; mar¬ 
ried, wife owns home; enlisted for seven years, four in active service, rest in 
reserves. Voted at Fairbanks. 

.T, E. Pegues (rec. 301) reenlisted in Alaska in 1915. A'oted at Fairbanks; 
see testimony. 

L. G. Selk (rec. 257) came to Alaska .Tune 11, 1912. Enlisted December 16, 
1913, at Fort Lawton, AATish.; returned to Alaska ; has resided there ever since. 
A5)ted at Tanana. 

H. B. Stenbeck (rec. 317) refused to answer without any ob.jection. Abated at 
Richardson. 

Howard AA'estcott (rec. .321). Don’t appear whether he refused to answer or 
not. AWted Nulato. 

SOI.DTEKS WHO KEFUSED TO AXSWEK IN MAY. 

Assembled at Ahildez. on and prior to August 30.—AAhckersham refused to 
take their depositions. 

Cha.s. A. Agnetti (rec. 3.32), Ahildez. Nothing but alleged registration record, 
not identified ; Agnetti’s identity not proven. 

Howard G. Clifton (rec. 3.32). No proof whatever that he voted; unidentified 
voting list at A’aldez has one Harry G. Clifton. 

AAMlliam J. Cuthbert (rec. 332), Ahildez, registration record unidentified; no 
identit.v proven. 

T. P\ Gritlith (rec. .3.32), Ahildez, alleged registration record; no identity; 
record shows name “ Griffeth.” 

A. A. Ivott (rec. 331), Valdez; registration record not identified; no proof 
of identity; this list contains names of per.sons who voted and who offered 
to vote. 


264 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Emil Lniiis (rec. 331), A’aldez. rejiistrntioii record not proven and no proof 
of identity. 

W. U, Roarers (rec. 332), A’aldez, registration record not proven and no proof 
of identity. 

H. Slintts (rec. 331), Valdez. reg:istration record not proven and no proof of 
identity. 

P». AL Snyder ( rec. 332), Valdez, alleged registration record shows “ Bur M. 
Snider,” no proof of identity, registration record not identitied ; know nothing 
about him. 

C. R. ()(Ue {rec. 333), Valdez; R. L. Noaks {rec. 331) Valdez.—O. R. Odle was 
held at Valdez; Wickershain refused to take his dei)osition. R. \j. Noaks testi- 
tied fully and discussed fully his residence in Alaska prior to reenlistment. 

Other alleged soldier rotes. —George E. l)<»yle, Haines, record 177; Soldier 
Gross, Haines, recoi'd 177; Soldier Wilson, Haines, record 177. 

George E. Doyle testified in jail ; veracity doubtful; see testimony. 

Soldier Gross.—No evidence he voted nor how, except that of Doyle, who 
testified in jail. 

Soldier Wilson.—Same as Gross. 

Other soldiers, de})ositioiis not taken. —.1. A. Ellison. Gulkana (Sour Dough), 
record 340; R. Elimiuist, Valdez, record 331: R. L. Scearce, no record; E. I). 
Whittle, no record; Leo Kraft, no record; Dr. Leonard, no record, 

Pillison—no evidence except purported certified copy of register; not properly 
identified. 

p]lmquist—no evidence except purported certified copy of election ; register 
not properly identitied. 

Scearce—gone to China ; don’t know that he voted, or where. 

Whittle—no record whatever; don’t know that he voted. 

Kraft—-went to Nome; no record of his voting or that he voted. 

Dr. Leonard—no record that he voted ; post surgeon, contract, Fort Gibbon, 

Regular Anng soldiers rating at Valdez Bag grecinct. —.Ferry T. Allen, Val¬ 
dez Bay, record 244; .John T. McEvay, Valdez Bay, record 244; .Tos. Newman, 
A’aldez Bay, I'ecord 245. 

The.'^e four soldiers were in the Regular Army and had been stationed at 
P^'ort Liscuin, in the Valdez Bay precinct, for some years. No evidence as to 
their place of enlistment or residence prior to enlistment, nor how they voted, 
except that .Jos. Newman testified he voted for Wickershain. 

AVickersham also claims that Dr. .1. AV. .Johnson and wife and A. .1. Pent- 
tinen were Regular Army people, but they were not. Dr. .Johnson and wife 
(rec. 590) were old residents of Sitka, and P'enttinen (rec. 244) was an in¬ 
ducted .soldier. The only one of the above votes that could be thrown out is 
that of Newman. 

The Chairman. Let me ask you this question: Does this list con¬ 
tain the names and the places Avhere these men looted ? 

^ir. Grigsby. No, sir; it does not; not all of them. 

The Chairman. Hrat you that information? 

Mr. (trigsby. Yes; I can add all of that Avhen I put it in the record. 

The Chairman. That Avill be atiw helpful to the committee, and 
I think that information should be furnished. 

Mr. Chindblom. Is the place in the record sIioaati, AAdiere you refer 
to it? 

^Ir. Grigsby. Yes; with the permission of the committee I will 
add that in there within the next tAvo days. 

The Chairman. I think that aauII aid us very materially. 

Mr. Grigsby. Now, the precedent that is most important in this 
case, of course, is the decision of the last contest from Alaska on this 
same proposition. The decision there affected the Amtes of 36 Alters 
at Fort Gibbon and Eagle, Avho were stationed at forts, and there 
AA^as no eAudence in the case as to their liaAung been in Alaska in any 
other capacity than as soldiers or of their having done anything to 
manifest an intention to claim a residence or to perform any act indi¬ 
cating that they had taken up Alaska as their home, but the com- 


WICKEESHAM VS. SULZER (DECEASED) AND GRIGSBY. 265 

mittee adopted the broad theory that a soldier in the servdce of the 
I nited States can not acquire a residence or change his domicile 
while in such service. ’ 

The Chairman. Let me ask this: Were any of those men in 1916 
members of the Signal Corps? 

^Ir. (trtgsby. None of those that were thrown out. 

Mr. WicKERSTiAM. Yes; there Avere. Selk was one. 

Mr. G RIGSBY. Selk may have been a Signal Corps man, but there 
Avas no more eA’idence as to him having done anything to acquire 
residence than there was as to any of the rest of them. There is 
nothing Avhatever to make a Signal Corps man a resident any more 
than any other soldier unless the Signal Corps man does something 
whereby he becomes one, and the authorities hold that any soldier 
AAdio does anything AAdiich indicates his intention to change his domi¬ 
cile can do it Avhile he is in the Army. 

The authority AAdiich has been cited against me is the decision in 
the last contest by Riley dVilson, and Judge Wickersham had quite a 
fit of indigination oA^er the AA^ay that Riley M^ilson had been treated 
in the last contest. I do not knoAv aaJio treated him AAU'ong. I AA^as 
present AAdien the argument was made before the committee: and I 
Avas present AAdien the argument AA^as made in the House; and I do not 
knoAv anybody AAdio- tried to impute an}^ improper motives to Riley 
Wilson. They criticized some of his findings. Some of those avIio 
criticized them A^oted the other Avay in the House, but so far as Mr. 
Wilson Avas concerned he Avas treated courteously at all times. 

Mr. Chindblom. Do you mean the chairman of the committee in 
the Sixty-fifth Congress? 

Mr. Grigsby. Yes, sir. Mr. Wickersham said if he had been 
treated like Mr. Wilson was he would have fought—that is Avhat I 
am referring to. But I do not know in Avhat Avay Mr. Wilson was 
abused. At the same time I have not the same reverence for his 
opinion in this particular case that Judge Wickersham has. The 
leading case cited by Mr. Riley Wilson in 1916 was the Ames case; 
that was the case of a man-Avlio Avas elected to the United States 
Senate from Mississippi; and Mr. Conkling- 

Mr. Chindbloai (interposing). Do you mean Roscoe Conkling? 

Mr. Grigsby. Yes; Roscoe Conkling, the chairman of the Judi¬ 
ciary Committee of the Senate, reported that Mr. Ames Avas not en- 
title^d to the seat, because he Avas not an inhabitant of the State of 
Mississippi at the time he Avas elected. The report of that case is 
contained in “ Contest Election Cases, Ignited States Senate, 1789 lo 
1885.” 

The report against Ames getting his seat contains no opinion; 
it states the facts and concludes Avith a resolution that Gen. Ames 
Avas not entitled to the seat; that Avas the report of the committee 
which Mr. Rilev Wilson cited. 

Well, the Senate of the United States overruled that opinion, and 
Gen. Ames was seated after a strenuous debate; he Avas seated on 
the 18th of March. 

Mr. O’Connor. He Avas seated, you say ? 

Mr. Grigsby. Yes; they seated Gen. Ames. 

Mr. Hitdspeth. I understood Judge Wickersham to say that other 
night that he Avas not seated. 



266 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Mr. Grigsby. So did Eiley Wilson say that; Jiid^e Wickersham 
can blame it on Eiley Wilson. 

Mr. AVickersham. I just read that as an authority. 

Mr. O’Connor. I was under the impression that you stated that 
he was not seated. 

Mr. Hudspeth. That Avas the impression that I had. 

Mr. Wickersham. I just read Mr. Wilson’s opinion. 

Mr. Hudspeth. AA^hich stated that he Avas not seated ? 

Mr. Grigsby. Yes, sir. Now, I ha\"e read all of this case; and 
Gen. Ames’s supporters argued that his filing of his candidacy doAvn 
there in Mississippi shoAA^ed his intention to become a resident of 
the State, sufficiently to make him an inhabitant of the State under 
the law. 

And finally the resolution Avas amended in the Senate by striking 
out the AAmrd “ not,” so as to make it declare that Gen. Ames was 
entitled to his seat; and it passed by a vote of 40 to 12, in 1870. 

Mr. O’Connor. AAYll, Gen. Ames AA^as seated, although Mr. Eiley 
AATlson said that he AA^as not seated ? 

Mr. Grigsby. Eiley AVilson does not say that he AA^as not seated; 
Eiley Wilson cites the report of the Judiciary Committee; but he 
gives the speech of Senator Conkling, I think it is- 

Mr. O’Connor (interposing). And the report of the Judiciary 
Committee Avas not accepted by the Senate ? 

Mr. Grigsby. The report of the Judiciary Committee was over¬ 
ruled by the Senate, and Gen. Ames was seated as a United States 
Senator by a vote of 40 to 12. And that is the authority that Eiley 
Wilson had for throAving out the soldier vote in the 1916 contest. 
Mr. AVilson quotes the speech of Senator Conkling, made in the 
Senate and not before the Judiciary Committee, telling why Ames 
should not be seated. 

There are also contained in this Amlume [indicating] numerous 
other speeches which Avere made; and the Senate OA^erruled the Judi¬ 
ciary Committee and seated Gen. Ames. 

Noav, Avhat other authority does Eiley Wilson cite for his opinion? 
The case of Taylor v, Eeading; that is a Pennsylvania case. Judge 
AVickersham read that case the other day. 

Mr. Chindblom. In order to get the record straight, I Avould like 
to obserA^e at this point that the record in the Ames case is contained 
in the “ Compilation of Senate Election Cases, 1789 to 1885,” on 
pages 279-281. 

Mr. Hudspeth. You ha\^e not the speeches made in the Ames case, 
have you ? 

Mr. Grigsby. Here they are, in the Congressional Globe. 

Mr. Hudspeth. Containing all the arguments? 

Mr. Grigsby. Yes, sir; they are in this Amlume [indicating] of 
the Congressional Globe, part *3, second session. Forty-first Congress, 
1869-70. _ 

The action of the Senate in seating Mr. Ames is found on pao-e 
2349 of that volume. 

Judge AATckersham read from the case of Taylor v. Eeading, from 
Pennsylvania; he read the report of that case; that Avas a law case. 
And I asked him if that case did not admit some soldier Amtes. I 
could not get an answer. But on page 240 of Eowell’s Contested Elec- 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 267 


tion Cases, it seems to show that there were 20 soldier votes in ques¬ 
tion; there were differences in regard to certain soldier and pauper 
votes. The soldiers had been for years stationed in the precinct; 
some of them had resided there before their enlistment, and some 
had reenlisted from there although their former enlistment was 
from other places. The majority were the votes of soldiers who had 
come from other places and Avho had not reenlisted. 

That is the case cited by Riley Wilson. 

The Chairman. What authority is that that your are quoting? 

INfr. Grigsby. Rowell’s Contested Election Cases. 

The Chairman. In what (\)ngress? 

:Mr. Grigsby. Forty-first Congress, jiage 240. That case is also 
reported in Contested PRection Cases, second session, Forty-first Con¬ 
gress, Miscellaneous Documents. 1865-1870. It is reported more 
fully here [indicating], and the committee vdll notice that this 
report, page 661 in that volume, was made on March 29, 1870. Gen. 
Ames was seated on April 1; and this report was made just a couple 
of days before Gen. Ames was seated; and the majority of the com¬ 
mittee stated as follows, with reference to these 20 soldier votes: 

Tlie views here expressed and the judicial upinioiis liere given might per- 
liaps exclude all or nearly all of these 20 votes; the committee, however, 
leaning always toward sustaining the right of suffrage and giving always to 
the returned ^Meinher the henetit of every doubt, has divided this list into 
three classes. The tirst class consists of persons who resided in the precinct 
at the time of their tirst enlistment, and consequently did not change their 
residence. There are three of this class, to wit, .Tames Cleary, Peter Hoban, 
and .Tames Imrkin, and their votes are allowed. 

The second class consists of those persons who had enlisted but once, who 
resided at the time of their enlistment outside of this precinct and who had 
done nothing to indicate any determination on their part to change their resi¬ 
dence and who had made no election of this particular place as their place 
of residence since the time of their enlistment. On the contrary, two of this 
class testified that at the very time they voted their families resided else¬ 
where, and it is clearly proven that the entire class, seven in number, left 
the i>lace soon after the election and have not returned; they were all single 
men except these two above referred to * * *. These 7 votes were rejected, 

being part of the .71. 

The third class consists of those who did not reside in the district at the 
time of their enlistment but remained for some years, in some cases reenlist¬ 
ing once, twice,, and in one case three times. Most of these men have either 
purchased or rented property, had their families in the district, and had 
given other evidences of an intention to elect this precinct as the place of their 
abode. These 10 votes are allowed. 

Now, that is Riley AVilson’s authority—this case and the Ames 
case; and this case utterly repudiates the doctrine that a soldier can 
not actjuire a residence. 

The Chairman. What case is that? 

Mr. Grigsby. Taylor v. Reading. 

^Ir. CHiNDBn():M. That was in the House, was it? 

Mr. Grigsby. That was a House case. 

Mr. O’Connor. W as that a committee report from which you have 
been reading? 

Mr. Grigsby. That was a committee report. 

Mr. O’Connor. xVnd it was adopted by the House, was it? 

.Mr. Grigsby. I presume it was. I have not got to that yet. 


268 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Now, I Avant to read the minority report. The minority report 
was rendered on April 4, 1870, AAdiich Avas after Gen. Ame^ AA^as 
seated, and it starts out AAuth the folloAving statement—page 679: 

Since the HCtUni of the Senate on the 1st (laj’ of April, 1870, on the admission 
to a seat in the Senate of Gen. Ames, who at the time of his election (in the 
language of the majority of the committee in this case as touching this soldier 
A'ote) was not in Mississippi “ h.\' his own Abolition but by command of his mili¬ 
tary superiors,” I am compelled, therefore, to say that 1 can not coincide AA’ith 
the majorit.v committee in their rejection of seven of the votes known as the 
soldier vide in the eighth division of the IwentA’-third AA^ard. * * * 

In IloAven r. Gibbon, Justice Carter, of the District of Columbia, held “ that 
an ofiicer or enlisted man neither gained nor lost a residence; his residence Avas 
Avhere he enlisted.” In AueAV of this decision, I insist that Avhen the term of 
enlistment expired these soldiers, having the animus manendi, gained a resi¬ 
dence eo instanti in this division, and it Avas their residence at the time of their 
reenlistment; and. if so, they AA^ere not disqualified by reason of their non¬ 
residence. This Avas likeAvise the decision in the case of Gen. Ames above 
I'eferred to. I can not rc'ject the foregoing 7 votes; 1 retain the Avhole 20 
soldier votes in the retui'ii of votes for the sitting Alember. 

And further on he comments on the Ames case. 

The other report, AAdiich disalloAvs the votes of some of these sol¬ 
diers, Avas rendered before the Ames decision. Noay, there are other 
authorities- 

Mr. CiiiNDBUOAi (interposing). Let us get in the record Avliat Avas 
done in that case. 

Mr. Hudspeth. Yes; let us get that in the record. 

ijNlr. Grigsby. You can not ahvays tell from that book [indicating]. 
1 jiresume the report of the majority Avas adopted. 

Mr. ChiiNDBLOAi. But Avliat case Avas that? 

Mr. Grigsby. TaAdor v. Reading. 

Mr. CiiiNDBLOM. AYell, on page 661, in the syllabus, I find it stated 
that the report Avas sustained by a ATite of 114 ayes and 45 noes. 

Mr. Grigsby. That Avas the majority, then; I did not notice. The 
majority report alloAved 10 Azotes. 

The Chairmax. And disalloAved 10? 

^Ir. Grigsba\ No: I see that the majority report alloAved 13 votes, 
3 of Avhich Avere Axites of those Avho resided in the precinct before 
they enlisted; and then alloAved 10 votes of those aaRo either reen- 
listed in the precinct, or married, or had homes; and so, according to 
the majority report, there Avere 13 alloAved altogether. 

Mr. O’CoxxoR. And the minority report Avanted them all to vote? 

^Ir. Grigsby. The minority report Avanted them all to vote, on the 
authority of the Ames case, which Avould have alloAved them all to 
vote. 

^Ir. CiiixDBLOM. AYill yon give the exact title of this case as it is 
Imported ? 

Mr. Grigsby. In some of the volumes it is called the “ Reading 
case ; and in some it is called “ Taylor v. Reading.” 

Mr. CiiixDBLOM. I see that the minority report Avas Avritten by 
Samuel J. Randall. 

Mr. Grigsby. I Avant to say to you gentlemen that nearly all of the 
soldiers aa ho liaA^e not testified, or Avhose testimony has not been taken, 
as AA ell as those Avhose testimony has been taken and who are charged 
to Mr. Sulzer, come Avithin these authorities. They are not in Alaska 
simply as soldiers; they come there at their OAvn request; they rent 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 269 


houses; they take part in civic atlairs; they pay taxes, marry, and 
mingle with other citizens. They are not stationed at any fort or 
arsenal. They come squarely Avithin the classification of this case. 
And any soldier who did anything evidencing an intention to make 
Alaska his home is entitled to A'ote, according to the Ames case. 

Noav, I want to go back for a minute. I want to call attention 
again to section 1860 of the KeAused Statutes, which prescribes the 
qualifications of voters in the Territories. That has already been 
discussed. I simply cite section 1860 of the Eevised Statutes to 
shoAv that it neA^er Avas the intention of Congress that a soldier should 
not, under any circumstances, vote in a Territory. I do not claim 
that this section applies especially to Alaska. The qualifications of 
A^oters in Alaska are fixed by our act of 1906, Avhich provides that a 
man must be a bona fide resident for one year; and a “ bona fide resi¬ 
dent ” means- 

Mr. O’Connor (interposing). By “our act” do you mean the act 
of the Territorial legislature? 

Mr. Grigsby. No; the act of Congress of 1906, Avhich prescribes 
that a man must be a bona fide resident of Alaska; “ bona fide resi¬ 
dent ” has a well-defined meaning in laAv; it means something more 
than remaining there the requisite amount of time, with the requisite 
intention: and the provisions in most of the States are that the mere 
presence or absence of a soldier in the service of the United States 
within a State shall not cause him to acquire or lose residence. That 
is also the common law Avhich is in force in Alaska. A man must be a 
bona fide resident in Alaska a year in order to vote. I Avill admit that. 

But this proposition advanced by the contestant is that he can not, 
if he is a soldier, become a bona fide resident. There is not anything 
in the decisions that say so; and Congress, on the contrary, in legis¬ 
lating for all the other Territories, says that, even while he is in 
the Army, the mere fact that he is in the Army in a Territory for six 
months will make him a Aoter. That is a limitation which is put 
upon the legislature. 

The legislature of all Territories, noAv or hereafter organized, 
shall have the power to fix the qualifications of voters subject to 
certain limitations: and one of the limitations is, that no officer, 
soldier, seaman, mariner, or other person in the Army or NaA^y of the 
United States shall be allowed to Amte in any Territory by reason of 
being in the serAuce therein—that is, for that reason alone—unless 
such Territory is, or has been, for a period of six months, his perma¬ 
nent domicile; that is, while he is a soldier, although Judge Wicker- 
sham tries to make it appear that that means after he is discharged 
from the Army. But that is ridiculous, because after he is discharged 
from the Army he comes within the general residential qualifica¬ 
tion; and the legislature of a Territory might say the residence for 
Acting purposes shall be 90 days. 

Now, the law does not say that there shall have to be six months’ 
residence in the case of a discharged soldier. A discharged soldier 
is not subject to any penalty for having been in the Army. The 
period of residence might be 90 days for an ordinary citizen; but 
according to Judge Wickersham, it would have to be six months for a 
discharged soldier. 



270 WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

I will read that section and show you. This iS from section 1860, 
Eevised Statutes [reading] : 

No officer, soldier, seaman, mariner, or other person in the Army or Navy, 
or attached to troops— 

Not who has l^een attached to troops,” but “ attached to troops,” 

In the service of the United States shall be allowed to vote in any Territory 
by reason of being on service therein. 

Not “ by reason of having been on service therein.” 

Unless such Territory is and has been— 

While he is on service therein— 
for a period of months, his permanent domicile. 

Showing that Congress intended that soldiers domiciled in a Ter¬ 
ritory for six months could vote. Now, there is your congressional 
view of it in that Territory. 

Now, are you to say that a man must be a bona fide resident of 
Alaska for a year in order to vote, and that a soldier can not be a 
bona fide resident if he does everything that everyone else does to 
become one ? If you go up there for a year, Mr. O’Connor, for a year 
to visit, your mere presence does not make you a citizen. You must do 
certain things. And the only reason that a soldier can not acquire 
a residence the same as anybody else is because he may not have the 
opportunity; he may not do what is necessary; but if the nature of 
his service is such that he has all the opportunity anybody else has 
under this authority which Mr. Wickersham has cited and which I 
read to you he can become a citizen. If the nature of his residence or 
his acts is inconsistent with his having a domicile anywhere else, then 
he is domiciled in that Territory. I have cited abundant authorities 
in my brief on that proposition from decisions of courts, and I find 
no decisions to the contrary. 

It is all a hoax, this whole soldier business. The only soldiers that 
are in question are those who the evidence shows had no other resi¬ 
dence up there except as soldiers; and it may have been the intention 
of Congress that soldiers should be allowed a vote in any Territory 
under the sun. There is room for that argument; but I do not w^ant 
to claim it in this case. 

There were 31 soldiers who voted at Valdez Bay, and there were 
23 of them who voted for Mr. Sulzer and 7 who voted for Judge 
Wickersham; and Judge Wickersham wants those soldiers thrown 
out, w^hich wmuld result in a gain for him of 16 votes, on the theory 
that these conscripted Alaska boys were not residents of the precincts 
in which they voted. He concedes that they were residents of Alaska 
and had been there a year, and had been in the precincts in which 
they voted 30 days—actually there—but he says that they did not go 
there to acquire a home, but that they were simply soldiers sojourn¬ 
ing there under compulsion, and therefore could not vote. 

Let us see what the law^ is. Section 394 of the act of Congress of 
May 7, 1906, is as follows: 

Sec. 394. All male citizens of tbe I'liited States 21 years of age and over who 
are actual and boini fid(' residents of Alaska and who have been such residents 
continnonsly during the entire year immediately preceding the election and 
who have been such residents continuously for 30 days next preceding the elec¬ 
tion in Use i)recinct in which they vote shall be qiialilied to vote for the election 
of a Delegate from Alaska. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


271 


There is no construction which can be made of that section which 
requires any bona fide residence for the purpose of making a home 
in the precinct. Now, I will read it again, and I will put in the lan¬ 
guage which is understood by the word “ such.” 

The Chairman. What book is that you are reading from? 

Mr. Grigsby. This is the Code of Alaska; it is section 394- 

The Chairman^ Of the congressional act? 

Mr. Grigsby. \ es; of the congressional act of 1906, the one upon 
which Judge Wickersham relies to throw out these votes. 

All male citizens of the United States 21 years of age and over who are 
Jictiial and bona tide residents of Alaska, and who have been such (actual 
and bona tide) residents (of Alaska) continuously during the entire year 
immediately preceding the election and who have been such (actual and bona 
fide) residents (of Alaska) continuously for 30 days next preceding the election 
in the precinct in which they vote— 

Is that not what it says? Now, what is the reason for it? Judge 
Wickersham smiles. Let him take this section and construe it in 
some other way, on the language alone. But the intention of Con¬ 
gress was that the voting public up there should have the right to 
vote; and at the time this act w^as passed it provided for the election 
in August. And the majority of the population in Alaska was a 
mining population; and the mining population was out at their 
mines; and this act was passed in order to enable them to vote in 
the precinct in which they had been for 30 days. That was the 
purpose of it, and that it what it says. And I defy Judge Wicker¬ 
sham to read it in any other way. “ Who have been such residents.” 
That means the only kind of residents that had been described— 
“ actual and bona fide residents of Alaska.” 

Mr. Wickersham. Your view, then, is that you can vote in any 
precinct in the Territory, if you have been an actual and bona fide 
resident of the Territory for one year? 

Mr. Grigsby. If you have been in the precinct 30 days; yes. That 
is what the statute says, and what the statute intends. It does not 
make any difference if you have a home in Juneau and do not give 
it up, that statute gives you a voting residence in that precinct that 
you have been in 30 days; and it Avas written for the purpose of 
doing just that thing. x4nd it may even give you two voting pre¬ 
cincts. If the law says that a man can vote in two precincts, he 
can vote in either of the two precincts. 

Mr. O’Connor. But that section prescribes that he shall have re¬ 
sided there 30 days next preceding the election? 

Mr. Grigsby. Yes. 

Mr. O’Connor. So that prevents him from having any two vot¬ 
ing places? 

Mr. Grigsby. This law says a man who has been a bona fide resi¬ 
dent of Alaska for one year, and has resided in the precinct in Avhich 
he offers to vote 30 days continuously presiding the election. That 
is what it says. Now, that is not a strained construction; it is the 
only construction. Here is the contestant trying to read something 
into the statute that is not there, in order to disfranchise 30 soldiers 
Avho enlised in the Army during the war to fight for their country. 

Mr. Wickersham. AYell, they did not do that, did they? 

Mr. Grigsby. Well, they were drafted; they were drafted in the 
Army. It Avould be bad enough to raise the point at all, but to raise 
it Avhen there is nothing in it is certainly reprehensible. 


272 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Now, those iire 23 of the seventy-odd soldiers that Mr. Wickershain 
wants thrown out. The others I have discussed. 

Now, I want to read you some authorities on this proposition of 
soldier voting in general. Here is the proposition I announce, as is 
supported by the authorities which I have read and which I will 
read: There is no law that Avill prevent a soldier in Alaska acquiring 
a residence in Alaska, even though he be sent there under orders of 
the commanding officer, and even though he be subject to removal 
at any time. 

In the case in re Cunningham et ah, the constitutional provision 
was: 

For the purpose of voting, no person sliall be deemed to have gained or lost a 
residence by reason of his presence or absence while employed in the service of 
the United States. 

That is the usual constitutional provision. 

This provision of the Constitution is aimed at the participation of an uncon¬ 
cerned body of men in the control through the ballot box of municipal affairs, in 
whose further conduct they have no interest, and from the mismanagement of 
which, by the officers their ballots might elect, they sustain no injury. If the 
effect is not to disqnalify such persons from gaining or losing a residence, but 
renders the facts of sojourn or absence important as evidence either to create 
or destroy it; in other words, presence or absence has primarily no effect upon 
the political status of such person. The question in the case is still as it was 
before the adoption of this provision of the Constitution, one of domicile or 
residence, to be decided upon by the circumstances of the case (citing Silvey 
V. Lindsey, 13 N. pj., 444). The soldier must acquire a residence in the new 
locality. His calling the place his home or believing it to be his home, does not 
make it legally such. It is not his view of the fact that governs. The facts 
themselves govern the question. Mere intention is not alone sufficient. It 
must exist, but must agree with and be manifested by resulting acts which are 
independent of the presence of the soldier in the new locality. It appears frojn 
the evidence produced on the part of the applicants that they have resided 
outside of the military reservation, but within the State and ward No. 6 
of the city of Plattsburg during the year last past. * * * i think the 

proof sufficient to establish a residence in this ward for over a year last past, 
and, therefore, order that the Board of Inspectors convene and place the names 
of the applicants on the register list as provided by law, and that an order may 
be entered accordingly. 

Now, in re Green, 5 Fed., page 145: 

It is not doubted that a sailor or soldier of the United States can acquire a 
residence while in the service. He may purchase or rent a dwelling and so 
gain a residence, as was the case in Fames v. Duryea, 6 Lansing, page 155, 
and doubtless in other ways. 

All these soldiers purchased or rented dwellings and married, most 
of them. Noaks testifies, page 370, that seven of the Signal Corps 
boys stationed at Valdez in the year 1918 married Valdez girls and 
owned their own homes. Isn’t that an intention to acquire a home, 
when you get married? They owned their own homes and lived in 
them, 7 of them. And there were only 14 voted in Valdez. All 
this hullaboo that has been raised about this soldier vote and Mr. 
Wickersham going up there and being prevented by force of arms 
and thugs from taking depositions is a hoax, designed as the rest of 
the case was to come down here and slip into Congress when there 
is nobody here to fight him. He never could get by any committee 
in the world with it if it was defended. 

Now, here are seven of these boys married Valdez girls and owned 
their homes and lived in them and the others lived in rented houses. 


WICKEKSHAM VS. SULZER (DECEASED) AND GRIGSBY. 273 

That is the undisputed evidence in this case, that of the whole 15, 
7 of them were married and owned their own homes and the others 
lived in rented houses. And here is your authority, the Pennsyl¬ 
vania case admitted 10 votes. It says they consisted of soldiers 
who either reenlisted or had been in the precinct many years, or 
have homes owned or rented homes, the same as this case. 

Mr. Chindblom. Does it appear in the record whether the Gov¬ 
ernment had barracks for them ? 

Mr. Grigsby. No; they did not; none of these soldiers lived in 
barracks. None of the Signal Corps soldiers in Alaska lived in 
barracks. 

Mr. Wicio:rsham. They are all supported the same as they are 
everywhere else. 

Mr. Grigsby. The}" don’t live on a military reservation. If they 
rent a house, they pay rent for it. 

Mr. Elliott. The Government allows them commutation of quar¬ 
ters. 

Mr. Grigsby. That is all right so far as commutation is concerned. 
When a man buys a house the Government doesn’t pay for it. 

Mr. O’Connor. But Mr. Chindblom’s question as I understood it 
w"as, is there a reservation there in which they may live, and not in 
a rented house? 

Mr. Grigsby. No; there is not. The Signal Corps men in some 
of the remote precincts live in the station. 

Mr. PIuDSPETH. How does the Government pay them, a monthly 
salary, a yearly salary, or by the day? 

Mr. Grigsby. A monthly salary. I don’t know much about how 
they are paid. 

Mr. Chindblom. What do you mean by “ living in stations ? ” 

Mr. Grigsby. Well, these fellows that live up at Copper Center, 
so far as I know, bunk in a room off the telegraph station. 

Mr. WiCKERSHAM. There is a reservation at every one of those 
places. There are Government buildings there where they live. 

Mr. Grigsby. Yes; and being on a reservation doesn't disqualify 
them from voting; and if they did vote, most of them—they all testi¬ 
fied they voted for you, and the others refused to answer—and if 
you deduct the-ir votes you don't gain anything by it. Now, you just 
confine it specificall}^ to each soldier and see if I am not right. I 
Avant the committee to study‘this evidence. I do not care hoAv 
many soldiers there were who Amted in Alaska. I am accused of 
not taking the depositions of any of them. There are members of 
this Signal Corjis aa-Iio haA^e been stationed at Nome, Avhere Mr. Wick- 
ersham carried the toAvn oA"erAvhelmingly. I suppose they A"oted up 
there, and Amted for him. Why didn't he take their depositions? It 
is not in the record that they did not A"ote. He goes and gets a 
list of 40 soldiers that he imagines A"oted for Mr. Sulzer, or pretends 
to imagine A"oted for Mr. Sulzer, and takes the depositions of 28 of 
them, and we haA"e discussed that. Then there are nine tliat refused 
to ansAver. Nine refused to ansAA-er last May Avhen he had no author¬ 
ity to make them ansAver. They assembled them in Valdez on August 
80, last year —1919— and he took the deposition of one of them, and 
that felioAV SAvore he A'oted for Wickersham. Then he quit. He is 
the man that is raising the question of this soldier A"ote: I am not 

181744—20-18 


274 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

raising it. It was not incumbent upon me to take any depositions if 
I did not want to; but when he attacks the vote it is incumbent upon 
him to take them, and he didn’t do it. And why? He takes the 
deposition of Mr. Tyer, the very first boy you put on the stand, and 
Tyer swears positively that he voted for Wickersham. 

Then he put Mrs. Tyer on the stand, and she refused to disclose 
for whom she voted, on the ground that she was a legal resident, 
having lived in the Territory continuously for five years prior to 
election day, although she married Mr. Tyer on the 1st of November, 
which did not, as Mr. Wickersham claims, end her residence at all, 
and he admits he has been unable to find any authority to show that 
it did; and she stood on her rights; and she was in a family way, 
according to the evidence in this case, and was advised by her father 
not to attend the hearing, but to get a doctor’s certificate to excuse 
her from the hearing, and she was put on the stand and kept there 
for a long time and finally told by Mr. Wickersham that she would 
be kept there from day to day, or words to that effect, until she 
testified for whom she voted. She had engaged passage to go out 
the next day. Then the attorneys got into a row in her presence, 
when she was there in that condition, and roasted each other. Mr. 
Diamond said that Mr. Wickersham was a menace to civilization, or 
something of that kind, in Alaska, and I don’t know what Mr. 
Wickersham said, but anyhow this woman had to sit there and en¬ 
dure all this. Then the undisputed evidence shows that she went 
home and fell over on the bed and had hysterics, and her brother was 
there, and she claims that she had been mistreated, and in a way he 
thought she had been, and he and the old man Selby, who is a news¬ 
paper editor there, had a discussion as to which one of them would 
go out and lick Wickersham, and they both wanted to do it, but the 
boy says, “You keep out of this: I’ll attend to this.” And he did. 
He deliberately walked down the street and encountered Wicker¬ 
sham. His father went along with him and they had a fight, and 
according to all the testimony about that fight Mr. Wickersham did 
very well considering that he was matched with a much younger 
man, and probably was not in as good condition, and if Mr. Wicker¬ 
sham wants to make any capital out of that defeat and is trying to 
turn it into a victory clown here, I would feel very sorry for him 
for having been beat up by this soldier, but when he comes down 
here—now this is one soldier that licked Wickersham; it didn’t take 
a whole army. They call him “Fighting Jim” up in Alaska, and 
that is his reputation, but it didn’t take a whole bunch and the fact 
is this boy was not a member of the Signal Corps; this boy had been 
over in France for 18 months in the American Expeditionary Force? 
as an artilleryman. He had no connection with the Signal Corps 
and there is no evidence in the record that the Signal Corps had any 
connection—had anything to do or knew anything about this fight. " 

Mr. Elliott. You will have to admit one thing, though, that this 
fellow was in practice. 

Mr. Grigsby. Yes. Well, old man Selby said Mr. Wickersham 
put up a pretty good fight. 

Mr. Wickersham. He ought to know; he is the man that knocked 
me off the sidewalk. 

Mr. Grigsby. The old man? 

Mr. Wickersham. Yes. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 275 

Mr. Grigsby. Now let’s see Avhat you said about that in your sworn 
testimony. Just remember that. I think you can all reinember that 
statement, that Mr. Selby, the old man, knocked him off the side¬ 
walk. 1 on see, as Mr. 'Wickersham thinks over this thing he adds 
details. He told you the other night that a whole bunch attacked 
him; that he was mobbed. Now, I will read this first and tell you 
what he reminds me of afteinvards. 

iMr. Chindblo^m. What page are you reading from? 

Mr. (tkigsby. Here is the testimonv, page 281 , at the bottom of the 
page, where he commences tJie details of the fight. Mr. Dimond had 
just denied that he had anything to do with it, with what Mr. Wick¬ 
ersham accused him of the other night and accused him of then. Mr. 
Muckersham, in response to Mr. Dimond, said: 

I am glad yon made that statement, because I certainly would have done yon 
an injustice if yon had not; I can’t deny it, because I conidn’t see well enongh to 
know who the men were. 

Noav, if he couldn t see well enough to know who they were, why 
does he tell you gentlemen it was Dimond? 

Mr. Wickersham. I did not say it was Dimond. 

i\Ir, (tiugsby. \ on told these men the other night that Dimond 
ribbed this whole thing up, and you knew it, because he was right 
there with them. Now, you say you can’t deny it, because you 
couldn’t see well enough to know who the men were. [Reading;] 

Anyway, when I got there this young big fellow stopped me. I was on the out¬ 
side of the sidewalk; he and the other man, whom I did not know hiit who I 
have since learned to he the Selhys, were on the inside, next to the center of 
th.e sidewalk. The young fellow said to me, “ You have ins\ilted my sister over 
there in that examination ; she is over here crying now." I said, " No, I haven’t 
insulted your sister in any way;" and he repeated it—‘‘Yes, you insulted her; 
she is over here crying now, and I am going to heat you up." 

Mr. Djmond. ^^'e ol)ject to this as incomj)etent. irrelevant, and immaterial, 
and having no hearing ui>on the question as to who was elected in the 11)18 
election. 

Mr. WicKEKSHAM. No ; but it has a good deal of hearing on the matter of the 
depositions. 

He is trying to show by this testimony that it })revented him from 
taking depositions. [Reading:] 

T can not restifv al>out that last statement, whether lie said he was going to 
heat me up or mash my face—it was an exju-ession of that kind, which notified 
me of an immediate assault, and the assault was made on me so (juickly that I 
dmi’t rememher what the expression was, for that reason, among others. He 
immediatidy struck me—struck at me—hut T was standing with my face .square 
to him and 1 could see him with my left eye. ^ly left eye is pretty good ; I am 
totally blind in the right e.ve; Imt I can see two-thirds, at least, good with my 
left eye, and I warded oif his lilows, hut he kept striking at me, and the 
older man. who stood alongside of me on the right and whom I didn’t know and 

couldn’t even .see, said, " Hit him, Tom ; kill him ; kill the-.’’ Well, Tom 

did his best, and between them they i)ushed me off the sidewalk. When T went 
off the sidewalk, rather backward and on my left side, it turned me half around 
and presented my light side entirely to them, and, lieing totally blind on that 
side, I couldn’t defend myself, and one or both of them—I don’t know whether 
the old man struck me or not, liecause I couldn’t see, hut I was struck very 
vigorously several times on the right side of my head. They knocked out the 
last big molar tooth in my lower jaw and smashed my ear and my face all up 
on that side. I think the jaw is broken, hut Dr. Silverman says not, hut it is 
so badly bruised and swollen and in such had shape that although we took an 
X ray of it we couldn’t tell anything about it; hut I am suffering great pain 
with it now and have ever since. One of these blows on my right side, on my 
blind side, knocked me down, and I got up tinally ; T think I was kicked while 



276 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


I wjis down; I have s'ot a very had spot liere on my lower rijtlit jaw [indi- 
oatinj^], which I can’t renieinl)er anybody to have struck when 1 was up; but 
I am not sure al)out that. 

^Ir. Dimoni). I desire the record to show that I object to all of this testi¬ 
mony—there is no use interruptinj; at every stage of it—to anything that 
occurred outside of this room. 

The Witness (continuing). I finally came to and got up, and as I got up 
there was a man standing in front of me with a dark coat on, whom I didn’t 
know, but I have since been told it was INIr. Casler, the deputy marshal, who 
had been somewhere in the neighborhood and had seen the tight and came over. 
He waved his hand and said that will do, or some form of that kind, and 
stopped it. Even then the older of these two men was dancing around and 

calling me a-and trying to strike me, but the younger man took him by 

the arm and pushed him back and wouldn’t let him do it. 

I went to my hotel soon after that and sent for Dr. Silverman, and have been 
in bed most of the time since. My blind eye has been very badly injured and 
my face and jaw are very seriously injured and I have suffered very great pain, 
and consequently I have not been able to attend to the taking of my depositions 
in this matter during those days. I have 40 days to take the testimony in the 
Territory, but for those days since Saturday I have been in bed and not able to 
do anything. 

When I came here to take these depositions I was told by my attorneys and 
by a great many of my friends in the town that there was a feeling of enmity 
here to me on the part of these Signal Corps men and their friends that had 
been worked up and I had better not undertake to take their testimony. I 
talked it over with my attorneys and they thought finally it would be all right 
to take them—it would come around all right—but since that even my attorney 
has advised me very strongly against it, and I have not undertaken to take the 
testimony of these Signal Ckirps men and Army men here since IMr. Tyer’s going 
on the stand, because it is the fear of my friends that I may be killed if I 
undertake it. 

Certainly ]Mi'. Selby’s earnest efforts to get his son to kill me arose from the 
fact of rhe taking of the deposition of Tyer and his wife, and from that alone, 
I never saw or knew ]Mr. Selby or the young INIr. Selby before in my life. I sup¬ 
pose I may have seen the father, I don’t remember. But Mrs. Tyer is the 
daughter of ]\Ir. Selby, and I am informed a sister of the man who commenced 
this assault on me. I didn't insult her in any way, as the record shows, and 
I am informed, INIr. Itimond, that you have said so. 

Mr. Dimond. No. 

Mr. Wtckkhsiiam. You haven’t said so; the record shows, however, that I 
did not; I tried to get her to tell the facts, and she declined to do it, and she 
then left the Territory, but with my consent, although .she didn’t finish her 
testimony and tell whom .she voted for. ^Ir. Tyer went out with her. Neither 
one signed their depositions, although their attorney has consented that their 
depositions may stand as their depositions without their signing them. 

There ai‘e many things in connection with the taking of these depositions of 
the soldiers here that lead me to believe that they are very much incensed at 
me, and T seem to stand in about the same relation to them that an internal- 
revenue officer does in the South to a lot of moonshiners. I want them to tell 
the truth about whom they voted for, and for two elections they have now 
evaded it under the in.structions of their attorneys, the Democratic organiza¬ 
tion, and I get beaten up on the public streets, although I am 02 yeai's of age 
and blind, by the bunch when I undertake it,’ and I am not inclined to go any 
further with the taking of their depositions at this time. 

He talks about these soldiers that would not o-ive their de])ositions 
and accuses them of beating him up on the public streets, when the 
evidence shows they had nothing to do with it, and now he says there 
is a whole bunch and he couldn't tell whether there was a dozen or 
' 24 : from his statement the other night. He reminds me of a well- 
known character in Shakespeare, Sir John Falstaff. Some of you 
remember that when he and some of his companions committed a 
highway robber}^, while they were committing the robbery Prince 
Henry and a friend of his hid behind a corner, and after Sir John 
P^alstaff and his gang had gotten the other fellow's bond. Prince 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 277 


Henry and his friends went out and beat them up and drove them 
off. They were in disguise, Prince Henry and his friends, and they 
beat it down to the tavern and were there when Falstaff and his 
friends came in. Then Falstaff described the encounter, and he 
starts out by telling hoAv he was attacked by two men in buckram, 
and as he got warmed up over the description of it he raised the two to 
four men in buckram, and from four to seven, and from seven to 
eleven, and so on up until finally the Prince says, “ Oh, you lying 
scoundrel: that was me and Poins here attacked vou, iust the two 
of us.” 

I would like to put it in the record, gentlemen, if it would not 
encumber the record, but it shows the same disposition to exagger¬ 
ate, and if INIr. Wickersham would exaggerate about the number of 
men that attacked him and raise it from one to the whole bunch of 
Signal Corps officers, I begin to require testimony to show that he 
Avas so badly injured, and don^t feel so sorry for him. He is coming 
down here to Congress, I have been told that the Democratic organ¬ 
ization is accused in this record by Mr. Wickersham of not letting 
him get his testimony Avhen he went up there to Valdez and found 
that the testimony Avas not going to help him. He took the posi¬ 
tion that he could not get it; that there Avas a conspiracy there, a 
machine Avhich had existed for years past, headed by a man by the 
name of Noaks, and that of course fell right in line Avith his theory 
that they mobbed him and threatened to kill him, so that he had to 
leave the country, but the tAvo—noAv, he has made three statements 
about Avhy he did not take those depositions. The first is that he 
Avas afraid that he Avould be severely injured, if not killed, if he 
proceeded to take any more depositions, and the second reason he 
giA^es is that his attorney advised him that these Signal Corps men 
Avere in a conspiracy to go on the stand and perjure themseHes, and 
AA ill sAvear that they voted for Wickersham, and that he is satisfied 
that they are going to do that, and that therefore he don’t call 
them. The next reason he gives, Avhich is inconsistent Avith both of 
the others, is that the War Department fell doAAm on him; the 
Secretary of War and the AVar Department did not assemble the 
Signal Corps men in time; that he did not get any notice of their 
being assembled until the 30th day of August, and he only had 
seven days more to take depositions, and he had to go out to 
Anchorage. Xoav. look Avhat he says here in this testimony about 
that. 

The Tyler deposition was taken, record page 208, on the 23d of 
August. That is 14 days before the time for his taking testimony 
expires. 

Mr. O’Connor. AVill you permit an interruption there, Mr. 
Grigsby ? 

Mr. Grigsby. Yes, sir. 

Mr. O’Connor. Hoav much further haA^e you to go? I am not 
finding fault with Avhat time you take, but I Avas just thinking of 
taking a recess. 

Mr. Grigsby. I Avill just finish this quotation, then. On the 23d 
of August, Avhen this roAV came up with Mrs. Tyer; 

Mr. Wickersham. I want her to testify to the truth, and the whole trutli,. 
as slie said she would. 


278 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Mrs. Tyler. Why are you keeping uiy husband? 

Mr. WiCKERSHAM. Your husband is l)eing kept because of the resolution of 
the House of Representatives, which requires the assembly of all these soldiers 
here for the purpose of testifying. 

That is on the 23d of August, and at that time he was kept by 
the major in command, on account of that resolution, until Mr. 
Wickersham consented to excuse him. And the rest of the soldiers 
were there under subpoena—I will withdraw that; I don’t know 
whether they were under subpoena or not, but they could have been— 
but the reference to them is as being kept there in the same way. 
Anyway, they were there, so there wasn’t anything in this statement 
of his about not having time to take it, and there is nothing in his 
statement, no evidence except his own, to indicate that he was in 
any danger from any Signal Corps man. 

Now, there isn’t a more gentlemanly, finer class of boys anywhere in 
the world than those Signal Corps boys in Alaska, and it is so testified 
to in this record. They not only would not conspire to rob anybody, 
they would not conspire to commit perjury. For you to adopt Mr. 
Wickersham’s theory and count these votes of the boys whose deposi¬ 
tions he did not take, you have got to have some excuse for him not 
taking the depositions. Are you going to take it as an excuse that he 
is correct in the accusation that these men have conspired to go on the 
stand and commit perjury? Is it reasonable that boys who married 
girls and lived in the town of Valdez will get on the stand and commit 
perjury in a case in which they have no interest? Now^, he talks 
about the Democratic organizations having anything to do with them. 

Why, if there is any class of people in the world who are free 
from the domination of political influence and whose positions can 
not be affected by it, it certainly is the men in the Army. They are 
certainly independent and have a right to follow their own inclina¬ 
tions and opinions in political matters. They don’t owe their po¬ 
sitions to any party organizations, and they can’t be removed from 
their positions by any party organization. Why would they go on 
the stand in conspiracy and make perjurers out of themselves over this 
contest? Now, I say that is no excuse for his not taking the deposi¬ 
tions. There isn’t any evidence that he was in any danger. That is 
all bosh. None of them touched him. The encounter that he did get 
into was accounted for in another wav. It was just an excuse that 
he comes down here with for not taking this testimony, so that he 
could get you to receive other evidence which is of a very doubtful 
character, which tends to show that he thinks that some of these men 
voted for Sulzer. Now, what is this evidence? The 76 of them 
voted in the Democratic primary. It is in evidence in the Demo¬ 
cratic primaries in Valdez in April, 1918, there were more votes 
cast than were cast at the election in the fall, and a primary vote 
ordinarily is never as big as the vote at the general election. In 
Valdez it was more. Why? Because, as I have stated, and as the 
evidence shows, the Wickites put up a man in the Democratic pri¬ 
maries and went in and voted for him, and that is in the record, and 
you have 186 votes in the Democratic primaries in Valdez, ancl 180 
ballots cast in the general election more votes at the primaries than 
at the election. And in the Republican primaries there are only 
about 20 votes cast. 

Now, that shows how much participation there was by Republicans 
in the election outside of those that voted in the Democratic pri- 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 279 


mary. bo that evidence is absolutely valueless as to how these boys 
voted. If you should conclude that any of them are not legal voters, 
I contend all of them were legal voters. They were married, some 
of them owned their own homes, and others lived in rented houses, and 
they come within the qualifications for voters. 

^sow, what is the rest of his evidence? He puts his own attornev 
on the stand, and his own attorney says what is the general talk 
around, conversation, reputation. Now, reputation evidence is weak, 
but you have got to prove it first by somebody that is disinterested or 
it is all the weaker. Now, he takes the weakest class of evidence, of 
proof, and furnishes the evidence of it from the weakest class of wit¬ 
nesses. And we have got evidence to the contrary. 

Jmow, Mr. O’Connor, did you desire to make a motion? 

Mr. O’Connor. Before we recess, Mr. Chairman, let me ask one 
question. I want to get one point that is not very clear in my mind. 

As I understand your recital of the law with reference to suffrage 
in Alaska, is that you must be ^ bona fide resident for at least one 
year in Alaska and a resident of the precinct for 30 days prior to 
the election. 

Mr. Grigsby. It doesn’t say you have to be a resident of the pre¬ 
cinct prior to election; it says you must be a bona fide resident of the 
Territory, for a year in the precinct. 

Mr. O’Connor. The point I had in mind was this: Do you hold 
that under the statute also a soldier that has been in Alaska for six 
months can vote ? 

Mr. Grigsby. No, sir. 

Mr. O’Connor. Well; what was the six months’ provision? 

Mr. Grigsby. The six months’ provision is the general territorial 
act, revised in 1906, when Congress permitted all Territories here¬ 
after organized to fix the qualifications of the voters at all elections 
after the first one, provided there were certain limitations. One of 
them was that the voter must be a citizen; another was that if he was 
a soldier or sailor, a mariner or a person in the service of the United 
States, or the Army or Navy, attached to troops of the United States, 
he should not be allowed to vote in any Territory until he had been 
domiciled in the Territory for at least six months. 

Mr. O’Connor. Would you hold that notwithstanding that gene-ral 
qualification of one year bona fide residence in Alaska, that a soldier 
could be there for six months and then vote ? 

Mr. Grigsby. No, sir. 

Mr. O’Connor. You don’t hold that? 

Mr. Grigsby. No, sir; I certainly admit that a man to vote in 
Alaska must be a bona fide resident of Alaska for a year. 

Mr. O’Connor. Even though he is a soldier? 

Mr. Grigsby. Yes, sir. 

Mr. O’Connor. But you do hold that a man could go there as a sol¬ 
dier from Ohio or Louisiana and remain there a year and marry, and 
by that fact establish to your satisfaction his right to vote ? 

Mr. Grigsby. Yes, sir; and there are a great many other ways. 

The Chairman. We will take a recess now until 2 o’clock this after¬ 
noon. 

(AYhereupon at 12.20 o’clock p. m., the committee recessed until 2 
o’clock p. m. this day.) 


280 WICKERSHAM VS. SULZEE (DECEASED) AND GRIGSBY. 


AFTER RECESS. 

The committee resumed its session at 2 oxdock p. m., pursuant to 
the taking of recess. 

STATEMENT OF HON. GEORGE B. GRIGSBY—Continued. 

Mr. Grigsby. Mr. Chairman, Mr. Wickersham the other day read 
from the case of Delano v. Morgan, on the proposition of how far 
tlie committee could go in receiving circumstantial evidence as to 
liow a person had voted without putting the voter on the stand. 
That case which he cited, Delano v. Morgan, is an Ohio case reported 
in contested election cases, second session. Forty-first Congress, 
House miscellaneous documents 1805 to 1870. The opinion in that 
case states as follows. 

For whom a vote i.s jjiveii, by the laws of Ohio, is a secret properly known 
only to the voter himself, and he is never recpiired to disclose it. This fact 
must therefore l)e often determined upon circumstantial evidence alone. 

The same rule obtained in the celebrated case from New Jersey 
known as the Broad Beal Case. In the Broad Seal Case, from New 
Jersey, in the opinion the committee says: 

Although in numerous instances the voter, being examined as a witness, 
voluntarily discloses the character of his vote, yet, in many cases, he either 
did not appear, or, appearing, chose to avail himself of his legal right to 
refuse an answer on that point. In such cases the proof of general reputation 
as to the political character of the voter, and as to the party to which he 
belonged at the time of the election, has been considered sufficiently demon¬ 
strative of the complexion of his vote. Where no such proof was adduced on 
either side proof of the declarations of the voter has been received. The 
date and all the circumstances of such declarations being considered as con¬ 
necting themselves with the questions of creilibility and sufficiency. In every 
instance where the proof under all the circumstances was not sufficient to 
nroduce conviction the vote has been left unappropriated. 

That bears out what I said the other day; that is, the rule is that 
the evidence must be convincing. 

Now, I want to read a few extracts from the testimony in the 
record of some of those soldiers. The evidence in this case with refer¬ 
ence to these soldiers shows that the Signal Corps men have always 
been in the habit of voting in xAlaska. The testimony of Mr. Wicker- 
sham’s attorney is to that effect as to these Signal Corps men voting 
at Valdez in 1916 and previously. 

Mr. Wickersham I did not testify to it. I did not know it. 

Mr. Grigsby. Then, he did not know it, or testifies that he did not 
know it, but his lawyer knew it, and he took no depositions in Valdez. 
He criticises me because I did not take the depositions of any Signal 
Corps men, and I have answered that I am not attacking the vote of 
the Signal Corps men, which is sufficient excuse for my not taking 
their depositions. 

But back in 1916 he was attacking the votes of the soldiers at Fort 
Gibbon, where his opponent had carried the precinct by a large ma¬ 
jority, and he took the depositions of one or two at Fairbanks, or 
attempted to do so; but in Valdez, which, up to that time was a pre¬ 
cinct that Mr. Wickersham had always carried, and which was the 
headquarters of the Signal Corps outfit, and where he claimed that 
the Democratic machine controlled them, he took no depositions, and 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 281 


Deither did Mr. Sulzer. Why was that? Here is the reason why: 
The most interesting evidence in this connection is that of E. E. 
Eitchie, Mr. AVickersliam’s attorney in this case, contained on page 
215 of the record. On cross-examination Mr. Eitchie testified as 
follows: 

(}. I think yon said in the year 1918 the Siiijnal Oori)s hoys nearly all. so far 
as you are aware, intended to vote for Mr. Sulzer. or you had received iiiforma- 
lion that they prohahly would vote for Mr. Sulzer, and that such had not been 
the case theretofore in the precedinj? elections. Now, in that connection, is it 
not a fact that the Si^^naI Cori)s hoys who have liveid here in the town of Valdez 
have voted in all of the elections since and including 1912?—A. I think thev 
have. 

Q. And i)ripr to the year 1918 a great many of Ihein, prohahly a majority, were 
generally known as supporters of Wickersham, were they not?—A. Up to and 
including 1914 they were. 1 think in 1916 they were divided somewhere near 
half and half. 

Q. In 1914 it was generally understood that nearly all of them supported 
Judge Wickersham.—A. I think all except three or four. 

Q. These men while they lived in the Army had lived in the town of Valdez; 
that is, they don’t live at any military post?—A. Those in civilian employment 
live here in town ; that is, the Signal Corps operators and the Quartermaster’s 
employees live in town. 

Q. And a number of them are married and have their wives here and have 
their homes here. That is true?—A. Yes, sir. 

Q. And they don’t live at any military barracks or upon any military reser¬ 
vation?—A. They don’t live together. 

Q. As soldiers?—A. No. 

Q. Did you ever know of any objection being made to their voting prior to 
the year 1916 by anybody?—A, I have no recollection of any. 

Q. And you keep pretty good track of political matters here and if there had 
been any serious protest you would prohahly have known of it?—A. I think so. 

Then Mr. Eitchie makes this voluntary statement: 

Mr. Ritchie. I want to make an additional statement. Although I have been 
familiar for a great many years with the law that an enlisted soldier around 
a military barracks or one even claiming a residence outside of the barracks 
as long as he was merely stationed at a military post, could not vote. I was 
under the impression until 1912, or perhaps a little after, that a soldier in 
civilian employment, like these Signal Corps men, had a right to vote if he 
was not on a reservation but I was told by a lawyer here in the campaign in 
1912, or a little hit after, that I was mistaken about that, and I looked it up 
and ascertained the fact that they were on the same basis, so far as their resi¬ 
dence is concerned under the law, as any other soldier, hut I never objected 
to their voting for the reason that I thought it was not good policy, although 
for several years* they were voting, many of them, against the way I was. 

Q. At this time you oppos'ed Wickersham?—A. Yes; I opposed Wickersham 
in three elections, and in at least two of these elections nearly all the Signal 
Corps boys were voting for him and I didn’t object although I believed at the 
time that their votes were illegal, but I didn’t think it good policy to object to 
their voting, 

Q. As a matter of fact you never knew of anybody making any objection? 

_ \ I have no recollection of any. I think myself almost everybody was of 

the opinion they had a right to vote. 

Now it is in evidence, according to the testimony of Sliiitts, that 
he got’into the habit of voting on account of advice given by Mr. 
Wid^ersham and that other soldiers repeated to him. There is the 
affidavit of Odle, which is in evidence, or, rather, I do not claim that 
it is in evidence. I put it in my brief and, perhaps, I should not have 
done it, but Mr. MTckersham has contradicted it and waived the im¬ 
propriety. He has waived the impropriety of my putting it in my 
brief by producing an affidavit in rebuttal. I am willing that the 
committee shall take the affidavits—that is, the affidavit of Shutts, 


282 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


which was quoted from in the hearings in this case, the affidavit of 
Odle, and the affidavit of Mr. Wickersham, and decide who is telling 
the truth. I do not comment on it; but all of the evidence in this case, 
including the affidavits and testimony of Noaks and Kitchie, is to 
the effect that these men voted on account of advice that came from 
Judge Wickersham in the first place. The real point is that they have 
all been voting since and including 1912, and voting at elections is an 
indication or act evidencing residence. 

When a man votes at successive elections it is as much or more 
evidence of residence than mere inhabitancy, which the Senate held 
was enough in the case of Gen. Ames. They had been living in 
rented houses, or houses which they owned, were married to Valdez 
girls, were living separate and apart from the military reservation, 
and had voted in previous elections. The men were selective-service 
men, and most of them had been transferred to Alaska at their own 
request. That is the situation with regard to the Signal Corj)s vote 
at Valdez. Some mention was made of the fact that some of the men 
in the outlying sections lived in the station. Now, if they had lived 
in the station, and if the station is on the military reservaton, that 
does not make any difference as to their right to vote—that is, living 
on a military reservation or otherwise if they become residents, be¬ 
cause the authorities hold that living on a military reservation in a 
Territory is not a disqualification, whereas it is in the States. On 
that subject I will read from the case of Burleigh v. Armstrong, 
Rowell’s Contested Election Cases, 278: 

Blit with regard to the election held within the military reservations of 
P'ort Sully and Fort Randall (or the Ellis precinct), the committee have 
reached the conclusion that there is nothing? in the terms of the organic act nor 
in the general policy of the law forbidding an election to he held at such 
places. The contestants have insisted that the rule which disqualities persons 
from voting within any State who reside within forts or other territory to 
which the title and jurisdiction has been ceded by the State to the Federal 
Government applies to the military reservations which have been designated 
by the Executive within the territories belonging to the United States. But 
forasmuch as there is no contiict of sovereignty between the Government and 
the Territory, and the latter holds all its jurisdiction in subordination to the 
controlling power of (‘Congress, and the military reservations are not per¬ 
manently severed from the body of the public lands hut are simply set apart 
and withheld from jirivate ownership by an Executive order to the Commis¬ 
sioner of the Land Office, and may he, and often are, restored to the common 
stock of the public domain when the occasion for their temporary occupancy 
has ceased, at the pleasure of Congress, and which requires no concurrent act 
of any State authority to give it efficacy, the residents upon such reservations, 
although abiding thereon by the mere sufferance of the United States authori¬ 
ties, do not in any just sense cease to he inhahitnnts or residents of the Terri¬ 
tory within which such military reservation may he situated. 

That is the decision of the House of Representatives on that propo¬ 
sition; so that if a soldier is otherwise qualified, the mere fact that 
he lives on a military reservation in the Territory of Alaska does 
not disqualify him from voting. 

lam not going to read all the authorities I have cited in my brief. 
The extracts from the authorities are in here, and I expect the com¬ 
mittee will save time by examining them after it takes this case 
under consideration. 

Now, as to the vote of Max Faust. Capt. Faust testified that he 
has been a soldier in the United States Army for 20 years; that he was 
ordered to Alaska in 1903; that he left Alaska July 25, 1919, being 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 283 


ordered to Camp Lewis for discharge from the United States Army; 
and that he was a member of the L^nited States Signal Corps during 
his entire residence in Alaska. His original enlistment was in New 
1 ork City; and he also enlisted in Alaska. He made this statement: 

I wish to make the statement that I enlisted in Alaska, was appointed in 
Alaska, my family resides in Alaska, and I claim Alaska as my residence. 

He was in the Alaska service from 1903 to 1919, or for 15 years, 
and he was a man who reenlisted a great many times. I will not read 
all of the testimony, but I will ask the committee to do that. 

Capt. Max Faust, Avho was accused of having taken part in the 
suppression of evidence in the 1916 election, testified as follows, at 
page 75 of the record in this case: 

Q. Now, we tried to ^et testimony taken in Fairbanks two years ago in the 
other contest; you had a great deal to do with that?—A. Absolutely nothing. 

(}. The boys from there testitied that they refused to testify, because they had 
instructions from their superior officer, Lieut. IM. H. Faust, not to testify.— 
A. I think Judge Wicker.sham is entirely mistaken on that. 

(Judge AVickersham is examining the witness.) 

Q. I was not there. I am referring to the record.—A. I am referring to the 
records, too; and you have made this statement, or your representatives have 
made tliis statement, that my men refused to testify because they were acting 
under orders from their superior olticer, which is absolutely false. The men at 
Fairbanks, Alaska, telegraphed to me and told me that they were subp(enaed 
to give testimony in a contest, and requested information as to whether or not 
they were required to appear. I answered them and told them that I had no 
jurisdiction in the matter whatsoever, and suggested that they consult the dis¬ 
trict attorney as to what they had to do and what they didn’t have to do and 
he guided entirely by his views. Further than that I had absolutely nothing 
to do with the matter. 

Q. And you think they did that?—A. I don’t know. 

That is what the evidence shows as to any participation by Faust. 

Now, with reference to the residence of these Valdez soldiers, I 
want to read a small i:)ortion of the testimony of Noaks. Noaks is 
the man whom Mr. AVickersham accuses of being the head of the 
soldiers’ Democratic macliine in both 1916 and 1918: 

Now, were the members of the Signal Corps at Valdez in 191.S residing on 
a Government reservation?—A. They were not. 

Q. Where did.they reside?—A. In their own homes in the town—the married 
ones—and the others in other people’s homes as boarders or roomers. 

Q. They resided as other citizens of Valdez?—A. With and as other citizens 
resided. 

Q. Do you know whether the members of the Signal Corps paid taxes on their 
property like other citizens there?-—A. I know they did. 

Q. Did any of the members of the Signal Corps take part in the municipal 
elections that were held in the town of Valdez in the spring of 1918?—A. They 
<lid. 

Q. Was there any difference in their metln'd of living in Valdez from the 
way other citizens lived?—A. There was not. They were earning their living, 
associating with other citizens of the town and willing to be such. 

(C And they made personal friends among those living in Valdez?—A. They 

‘ ... 

(}. Do you remember how many Signal (’orps boys stationed at ^aidez for 

the\vear i918 married Valdez girls and young ladies who had lived in Valdez?— 
A. About seven. 

Q. Do you know that those that married owned their ov.m homes in Valdez?— 
A. Some did. 

Q. Did thev live in them?—A. They did. 

Q. And others, how did they live?—A. They rented houses. 


284 AVICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


There is no distinction between renting a house and living in a 
house you own, so far as residence is concerned, and I want to read 
this extract from one of the cases in that connection: 

The j^eiiernl proposition that the presence of the Army in a particular locality 
is not of its own voncion ami is presnmahly only temporary, is probably sub¬ 
ject to the qnalitication tliat the actual residence of members of the Army in a 
jiiven hx-ality may be of such fixed and permanent character as to exclude alto¬ 
gether the idea of domicile or residence in any other locality, and to the 
further qnalitication that though one in the military service is subject to the 
orders of superior officers the circumstances may be such that he remains so far 
sui juris as to matters not involved in his military duties that he may, if he so 
desires, change his domicile or establish it at any place he sees tit. Thus, it is 
apparent that there is no hard and fast rule governing all cases. (Ex parte 
White, 228 P>d., p„ 88.) 

I have cited to you other cases along this same line. 

In the hearings before this committee Mr. Wickersham stated in 
effect: 

Then we can not trust the telegraph lines any longer. But the fact is that 
they (the Signal Corps men) are formed into a political organization and they 
control the men all along that line in the use of the telegraph system so that 
every one of them votes the same way. They all have an organization, and they 
all get paid for it. I do not use “ paid ” there in the sense that money is 
handed out to them, but in this case a man by the name of Noaks at Valdez, 
where the cables come to the shore and through which the telegrams for the 
/Territory are scattered out, was the strong influential man among the boys, and 
some 18 or 20 of them at the station had Noaks to run the political organization 
there for 1916-1918, and immediately after the 1918 elections he was appointed 
to an office by the judge at that place. The Democratic judge there apix>inted 
him to the office of commissioner and a commissioi er makes him justice of the 
peace, probate judge, recorder, and gives him ;dl the rest of the power that is 
given to a commissioner, and Air. Noaks now sits there as a commissioner in 
court over a precinct, although he is not a voter in the Territory of Alaska, 
because of his voting all these men at the election. 

Judge Wickersham made that statement in July, 1919, before this 
committee. He had a resolution and the aid of the War Department 
and a good chance to take the deposition of this soldier. This 
soldier’s deposition was taken by myself, through my attorney. This 
statement Avas quoted to the soldier, Noaks, and he Avas asked: 

Q. I ask you if that statement is true?—A. It is absolutely false. 

Q. Where AA^ere you in 1916, at the time the election Avas held, on the 7th 
day of November, 1916, at Avhich a Delegate to Congress Avas elected?—A. I Avas 
at Copper Center. 

Q. Did you Amte at that election?—A. I did not. 

He not only Avas not at Valdez, as Judge Wickersham stated, at 
the head of the Democratic machine—he not only aa as not there at 
all, but he did not even vote Avhere he Avas stationed. 

Noav, Noaks testified something about the political complexion of 
those boys, as follows: 

Q. Did you hear any discussion as to the relatiA^e merits of Air. Wickersham 
and Air. Sulzer for Delegate to Congress in the campaign of 1916 at Copper 
Center?—A. I did. 

Q. And in that campaign Avhom did you favor, if anybody, in any of these 
discussions?—A. In 1916? 

Q. Yes.—A. I favored Air. Wickersham. 

Q. With whom did you ha\’e discussions in and about Copper Center during 
1916?—A. C. Parker Smith, commissioner; R. Blix, roadhouse man and post¬ 
master; Charles Cowell; James Alanken; and Frank Bingham. 

Mr. Blix testified for Mr. Wickersham in rebuttal, and could have: 
contradicted Noaks if the latter’s testimony was not true. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 285 


1 read further from the testimony: 

Q. IMi*. Wickersliani lias stated, as I just read to you, that you were the po¬ 
litical inaua^er for the hoys in the Signal Corps for the years 191(3-1918. Did 
you act as political luaiiager for the Signal C()ri)s hoys in either of these 
years?—A. I did not. That statement is absolutely false. 

Q. When did you tirst come to Valdez to take up your home there?—A. Feb¬ 
ruary G, 1917. 

Now, this man Xoaks went to Alaska in 1911; he arrived in Alaska 
July 1, 1911, and was stationed at St. Michael. His enlistment ex¬ 
pired on April 2, 1914, according to the record, page 3G9, and his 
duties were those of a telegraph operator. I read from his testimony, 
as folloAvs: 

Q. What did you do after your discharge in 1914?—A. Worked for the 
Quartermaster Department as a civilian and also on the San Pedro, which was 
a dredge at the mouth of the Yukon River. 

Q. Then did you later reenlist in the Signal Corps Department?—A. Yes. 

Q. When and where?—A. I enlisted August 25, 1914, at Seattle. 

Q. How long had you been in Seattle, Wash., when you reenlisted in the 
Signal Corps of the United States Army?—A. I had arrived about five days 
previous to that date. 

He goes on to say that he had no residence anywhere else than 
Alaska from 1911 to 1914; that when his term of enlistment expired 
he went to work on a dredge, then went outside and reenlisted, com¬ 
ing back to the same service—evidently, although he does not directly 
say so, in order to come back. So that, with the exception of less than 
a year, he has been in Alaska since 1911, has reenlisted, has studied 
law, was admitted to the bar, having been examined by Mr. 4Vicker- 
sham’s attorney in March, 191.9, four months after the election, and 
was appointed United States commissioner at Cordova. There is 
testimony explaining how Judge Brown came to appoint him. I 
will not go to the trouble of reading that, but it is set forth in tlie 
brief. The testimony shows that Xoaks is clearly a voter. 

Xow, there was another boy, John Pegiies, at Fairbanks, who re¬ 
fused to answer in 1918, and who, for some time prior thereto, I 
suppose for more than a year, was working on a newspaper there, a 
Democratic pa])er. I read from the testimony as follows: 

(}. When did you first come to Alaska?—A. .June, 191.3. 

Q. Were you in. the sei’vice of the United States Army at that time?—A. I 
was. 

Q. Had you been in the service of the United States Army at all times 
between the date of your said arrival up to and including November 5, 1918?— 
A. No. ]\Iy first eidistinent ended when 1 was en'route from Fairbanks to 
Fort Gibbon on September 21, 1915. The boat arrived in Fort Gibbon at least 
one day after the expiration of my service, and I was not enlisted again until 
another day, making two days, in order to retain the grade which I held at 
that time, my second enlistment papers were dated back to meet Army regu¬ 
lations. 

Q. How far back were the papers of your reenlistment dated?—A. Twenty- 
four hours. 

Q. Then there was an interval of 24 hours between the date of the expira¬ 
tion of your first service and the date given you in your reenlistment papers?— 
That is my understanding. 

(y Are you able to state what place you designated as your residence at 
the time .von so reenlisted?—A. I was not asked that for my place of resi¬ 
dence, but in request as a mai'ried man, for permission to reenlist, I state<l 
in a letter sent through military channels to the Chief Signal Office of the 
United States Army that my home was in Fairbanks, at which place my 
family was then residing. 


286 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Under the authorities which I read this morning, and which Mr. 
Wickersham cited, the mere fact of his reenlistment together with 
having a family there brings him within that Pennsylvania case 
where the votes were counted under precisely the same circum¬ 
stances. This man is there, out of the service, and is working on a 
newspaper. There is no question at all about the legality of this 
vote. 

The gentleman from Texas made the remark the other day that 
in Texas soldiers can not vote at all. 

Mr. Hudspeth. No, sir; that was a provision in the constitution 
of my State. 

Mr. Grtgsby. Nor even preachers. 

Mr. Hudspeth. Under our constitution of 1845 a preacher could 
not hold office in the State of Texas, but the constitution has been 
amended since. 

Mr. Grigsby. I want to enliven the proceedings by stating that the 
original Soviet constitution of Kussia provided that no preacher nor 
lawyer could participate in the Government, and they explained it 
on this theorAq or at least, I am so told by an ex-United States Sena¬ 
tor, that a hiAvyer spends half his life digging into the past and the 
balance of his life trying to apply Avhat he finds out to the present 
and lets the future go to hell; that a preacher spends half of his life 
digging into the past, the balance of his life trying to apply Avhat 
he finds out to the future and lets the present go to hell. So that 
naturally both AA^ere disqualified. But there is nothing in that theory 
Avhich would mitigate against a soldier A^oting, that I can discover. 

Mr. O’Connor. It Avas recently said by a celebrated man, in con¬ 
nection Avith the ncAv order tliat is to be foisted on the AA^orld, that 
Avhen that great day comes the Avaters Avill first floAv Avith the blood 
of the priesthood—undoubtedly there is no escape for them; second, 
the doctors—“ Praise God from Avliom all blessings floAv ”—and, 
third, the laAvyers; they are bound to go, but are made the third 
selected and not the first. 

Mr. Grigsby. There Avere 3 votes I did not discuss tliis morning, b}^ 
an oA^ersight, the votes of George Doyle, William Gross, and'Walter 
AVilson. George Doyle testified that he voted for Sulzer and he does 
not qualify as a resident except by his physical presence as a soldier 
in the Army. But there is something about the testimony of George 
Doyle Avhich throAvs a cloud on it. A portion of the cross-examina¬ 
tion of Doyle is as folloAvs: 

Q. You have been in Alaska since whar yearV—A. I was transferred np iiere 
in 191.5—August 18. 

Q. Now, you had been a vi(»lent AA'ickershain supiKuler up to the time of elec¬ 
tion. had you not?—A. I had not given eitlier party serious thought. 

Q. You were, however, advocating the election of AA'ickershani. is that not 
true?—A. I wasn't advocating either one. 

ii. Do you know Dr. Freehurger?—A. Yes, sir; I know Dr. Freehurger well— 
soldiered with him. 

Q. You know Mr. Prentiss, don't you?—A. Rilly Prentiss?. 

Q. Yes.—A. Yes, sir. 

Q. You knew those men before election day, didn’t you?—A. Yes, sir; I in¬ 
structed both of them up there. 

Q. And you advocated the election of Wickersham to them, didn’t you, before 
election day?—A. I don’t remember that I did. 

Q. You wouldn’t say that you did not, would you?—A. I wouldn’t say that T 
didn’t or I wouldn’t say that I did, because I never gave the election a" serious 
thought. I may at some time have said something offhand. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 287 


Q. lhat Wickershani ought to be elected?—A. Well, I don’t .iust recall what 
I did say. The strong talk in the company among the fishermen, they were all 
for AN ickersham—the company consisted of mostly fishermen, and hiev were 
all for Wickershani. 

Q. And that naturally made you lean toward AVicker.sham?—A. Yes, sir; 
naturally would—soldiered with them. 

Q. And that made you advocate the election of AVickersham as against Air. 
Sulzer, is that right?—A. No, sir; that didn’t exactly turn me against Air. 
Sulzer. AVhat turned me against Air. Sulzer was his own speech. 

(}. His own speech?—A. Yes, sir. 

(^. That was a week after election?—A. Yes, sir; approximately a week. 

And so on. Xoaa", it dcATlops that this man Avas in jail A\dien he 
testified under a charge of receiAdng stolen goods, Avdiether charged 
AATth it or serATng a sentence the record does not sho\\\ But he Avas 
visited in the jail by Mr. Rustgard, or his deposition taken there by 
Mr. Rustgard. He testifies, lioAveA er, that Mr. Rustgard called on 
him Avithout being sent for and it resulted in that deposition. Mr. 
Rustgard is a M ickersham attorney up there and here is a boy in jail; 
he calls on him, and probably this boy Avas mad at the Democratic 
h ederal officials, but on cross-examination he admits practically that 
he Avas adAmcating the election of Wickershani. Noav, it does not 
seem as though a seat in the House should be disturbed on account 
of testimony given under such circumstances. Doyle sAATars also that 
Soldier Gross and Soldier Wilson rode up to the polls in the same 
conA^eyance he did, but that he heard no conversation from them as to 
hoAv they Amted, although the general talk in the croAvd in a saloon, 
before any of them Avent up there, Avas for Sulzer. So there is only 
the opinion eAudence of Doyle, a man in jail, as to ho ay Gross and 
Wilson Amted, and his oAvn testimony is not any too credible. That 
is all the comment I have to make on that. 

Now, gentlemen, I Avill come to the (piestion of the Amters on the 
Indian reservations, so-called. Mr. Wickershani mentions the Hydah 
Reservation, the KhiAvock Reservation, the Auk Reservation, and the 
Douglas Reservation. You gentlemen knoAA^ Avhat the orders are 
Avhich created the KlaAvock and H 3 Tlah Indian Reservations, as they 
are called. The orders are ATry much alike. These reservations are 
set apart for the use of Indians of certain tribes and such other In¬ 
dians as choose to join them. There is no inference from the lan¬ 
guage of the orders that the orders refer to any organized tribe, but 
they say Indians of the Hydah Tribe and such others as choose to 
join them, not referring to the tribe as an organized tribe in any sense, 
but in a descriptiA^e Avay to identify the race of Indians for Avhom 
the reservation is reserved, and they extend the right to any other 
Indians that Avant to join them. The legal question in this case sim¬ 
mers doAvn to this, and there are tAvo points: Is this such an Indian 
reservation that residents thereon Avould not be residents of the Terri¬ 
tory ? Are they on a tract of land that is so set apart in the Territory 
that it is not in the Territory? If they are, then the Avhite men 
voting, Avho live on that reservation, Avould be disqualified. But it is 
not such a reservation. There is no authority ANffiich preA^ents resi¬ 
dence on the reservation being such a residence as entitles a man to 
vote unless the reservation is set apart from the Territory and can 
not belong to the future State except by treaty Avith the Indians. 

I have several authorities on that point. One of them is this Bur¬ 
leigh V. Armstrong case AAdiich I read Avith regard to military reser- 
A^ations. 


288 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


The Chairman. In what authority is that ? 

Mr. Grigsby. That is in Ilowell, page 278, the one I just read a 
while ago. 

Mr. Chindblom. Is the effect of that that the beneficial OAvnership 
must be in the Indians, so that eA^entually the land Avould be allotted 
to the Indians occupying it or so that they AA^ould haA^e some interest 
or claim in or to the land? 

Mr. Grigsby. Not necessarily; it could be either that or that it 
would continue to be reserved from the State to constitute an Indian 
reserA^ation in the State. 

Noav, here is the law in South Dakota : 

The laAA^ organizing the Territory of Dakota proAndecI that the Territory Avhich 
by treaties Avith Indian tril)es aa’us not to be made part of any State or Terri¬ 
tory Avithoiit the consent of those tribes should not become a part of the Terri¬ 
tory until the consent of the tribes AA^as obtained. 

It is quite apparent from the terms of this organic act that it Avas 
not competent for the authorities of the Territory to hold an elec¬ 
tion or exercise any other jurisdictional act Avithin any part of the 
Indian reserA^ation, because by treaty Avith the Indians that land Avas 
not to become a part of any State or Territory Avithout their con¬ 
sent, so that it Avould require affirmative congressional action, besides 
a treaty Avith the Indians, to restore it, though it is set apart. That 
is the case of Burleigh v. Armstrong (Kowell’s Digest 278). 

There are seA^eral other cases. Here is a case from Nebraska, re¬ 
ported on page 308 of Contested Elections, 1834 to 1865, second 
session. Thirty-eighth Congress, and it is the case of Daly v. Esta- 
brook. 

As to the A'otes from the the precinct of Genoa, in the coimtA' of Monroe: 
It is conceded that this precinct is “ in the reserA’ation of the PaAA'nee In¬ 
dians,” set apart for their occupancy by the United States. I>y the act of Con¬ 
gress oi-ganizing the territory it is proAided that the territoi'y occupied as an 
Indian resei'A-atioii shall not l)e considered a part of Nebraska Territory, but 
that all such Territories shall ])e excepted out of the boundaries until, by ar¬ 
rangement betAA'een the United States and the Indians, the title of the latter 
shall bo extinguished. 

So by statute it Avas not in the Territory of Nebraska and they 
could not count the votes from there. 

Another case is that of Morton c. Daly, on jiage 408 of the same 
volume, and the same set of facts existed. The act of Congress 
organizing the Territory of Nebraska is quoted, Avhich excludes from 
the territorial limits of the State the Indian reservation in question, 
and then it is stated : 

It AA"as not claimed l>efoi‘e the committee, nor do the committee understand 
it to be true in fact, that the PaAA'uees haA'e eA'er made an^’ such stipulation in 
their treaty as is here mentioned, or that they have ever signitied their assent 
to the President of the Thiited States to have their reserves included Avithin 
the boundaries or constitute a paid of the Territory of Nebraska. It folloAvs, 
therefore, that persons residing upon this reserve lire residents uiion “ no part 
of the Territory of Nebraska,” and are not entitled to vote therein. 

The next case is Todd v. Jayne, and here is a case Avhere they did 
count the Azotes. It is found on page 562 of the same A^oluine: 

The second point rests upon a mistaken construction of the folloAving proviso 
of the first section of the organic act organizing the territory: ''Provided, That 
nothing in this act contained shall be construed to impair the rights of 
person or property iioav pertaining to the Indians in said Territory, so long 
as such rights shall remain unextinguished by treaty betAveen tiie United 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 289 


States and such Indians, or to include any territory which by treaty with any 
Indian tribe is not, without the consent of said tribe, to be included within 
the territorial limits or jurisdiction of any State or Territory; but all such 
territory shall be excepted out of the boundaries aful form no part of the 
Territory of Dakota until said tribe shall siftnify their assent to the President 
of the United States to be included within said territory.” Now, it is apparent 
ujioii the reading of this proviso that the territory which it is therein provided 
shall be set apart for any particular tribe of Indians, and thereby to be 
excepted out of the limits of the territory, is that which is so set apart by 
treaty \\'ith any particular tribe, and is so excepted by the treaty itself. It does 
not apply to any portion of the territory upon which Indians may happen to 
live, but only such portions as are held by particular tribes under and by virtue 
of treaties defining boundaries, and stipulating for exclusive jurisdiction to 
be exercised by the tribes holding them. No such treaty existed covering any 
portion of the election precinct under consideration, and therefore the vote there 
cast can not for this reason be excluded. 

There votes were cast on an Indian reservation. 

Mr. WiCKERSHAM. But not by Indians. 

Mr. Grigsby. No; but the question I am now discussing is whether 
this is the kind of a reservation that a man can not live on and vote, 
and that is disposed of. Now, the question is this: Is there anything 
about these particular Indians who live on this reservation which 
would prevent them from voting? 

Mr. Chindblom. What was the nature of the reservation involved 
here ? 

Mr. Grigsby. Those were regular Indian reservations. 

Mr. Chindblom. I mean in this particular election case. 

Mr. Grigsby. They were reservations set apart at the request of the 
Bureau of Education and to which the Indians were permitted to 
go and where they could not be molested by the whites, so that they 
would have a better chance to become educated and advanced in 
citizenship. They went on those reservations, according to the testi¬ 
mony in this case, abandoning all tribal relations when they went 
there, and they went there for the purpose of abandoning tribal 
relations. That does not mean they could not associate together as 
individuals. 

The objection Mr. Wickersham makes to the vote is that they are 
still there and living in tribal relations, in other words, that they have 
not taken up their residence separate and apart from the tribe; but 
taking up that residence separate and apart from any tribe means 
any tribe organized and existing as an organized tribe; it does not 
mean that you can not dwell in a community with members of the 
same race of people, but it means you can not live with them organ¬ 
ized as a tribe. 

The undisputed testimony in this case is that there was no sem¬ 
blance of any tribal conditions or customs or relations on these res¬ 
ervations from the time they were organized, and there is no evi¬ 
dence whatever to the contrary, and I will read a little testimony on 
that. 

Mr. Chindblom. Was there any Indian on these reservations in 
Alaska which are involved in this contest who exercised any kind of 
governmental authority ? 

Mr. Grigsby. None whatever. 

Mr. Chindblom. Was there anybody who acted in the capa ity of 
a chief or medicine man? 

181744—20-19 


290 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. Grigsby. Absolutely no one. Here is the testimony of the 
Eev. David Waggoner, who testifies that he has been familiar with 
these Indians since 1901; and, referring to the Indians at Klawock, he 
was asked: 

Q. How lonj; have you known these natives, Mr. Waggoner?—A. Well, I have 
known some of them since the 10th day of August, 1901. and I gradually became 
acquainted with all of them since that date. 

Q. You have known them all for some years, then?—A. Some years, yes, sir. 

Q. Do you know what, if anything, these natives have done in the way of 
severing tlieir tribal relations?—A. They have what we as missionaries gen¬ 
erally call severing their tribal relations, and according to that standard these 
people have severed their tribal relations. 

Q. Now, what have they done in the way of severing their tribal relations?— 
A. They are not under the control of a family head or chief or clan head or 
any family head; they have separate homes; they handle their wealth ac¬ 
cumulated as a family and not as a clan; they have adopted the American 
inheritance law; they are adopting and have adopted—these special men—the 
Christian marriage relations—the civil—and their homes are not community 
homes ; and they are raising their children as we would, as civilized people 
would raise their children. 

Q. Hjive they any chief, Mr. Waggoner?—A. Not that I know of. 

Q. Well, you would know if they had one?—A. I haven’t seen a chief in 
Klawock in these 18 years. • ■ ' ' ; ' ' 

Q. If they had a chief there you would know it?—A. If they had a chief that 
controlled the village, I would know it. ' 

Q. Do any of these men whose names have been read to you obey or follow 
the dictates of any chief or any other Indian officer other than those authorized 
by the laws of the United States to make civil laws?—A. Not as being a com¬ 
mand. They inay follow the suggestions or advice of those who are related 
to th^m, Init they do not,obey as a command, but only from their own judg¬ 
ment when they think it best to follow that advice. 

Q. You dOn’t understand my question.—A. I mean to say, as a matter of 
authority. • - .. ; 

Q. I mean in a governmental way.—A. No, sir. ' < 

Q. What .you mean to say, Mr. Waggoner, is that they will take the advice 
of others, just as a white man will take the advice of others?—A. Yes, sir. 

. Now, he testifies to the same thing Avith reference to the Indians at 
Hydabiirg: 

Q. Now, Mr. Waggoner, with reference to these reservations at Klawock 
and Hydaburg, do you know what, if any, supervision the Government exer¬ 
cises over the Indians that reside at those places?—A. I don’t know of any 
supervision they have over the people as a people. 

Q. None whatever?—A. None whateA^er. 

Q. There is no Indian agent at either place?—A. No, sir. 

• Q. Are the Indians obliged or asked to remain upon these tracts that are 
reserved?—A. No, sir, 

(}. What do they do in the way of going and coming?—A. They are perfectly 
free. 

Noaa , he testifies with regard to the Indians at Juneau: 

Q. Do they obey any chief?—A. They do not, 

Q. Have they any chief?—A. They have not. 

Q. Have they any tribal house?—A. They have not. 

Q. Have they any form of tribal government whatsoever?—A. They have 
not, that I know of. 

Q. You would know it. wouldn’t you. if they did?—A. I think I would. 

Q. Are any of them skilled workmen?—A. We would say they were. They 
are not common day laborers; those that work in the mines are not what 
we would say “muckers;” they do drilling, and some of them have even 
taken contracts for drifting in the tunnels. 

That is the testimony of Waggoner. Noaa^, there is also the testi¬ 
mony of HaAvkesAA'orth, the superintendent of the Indian schools 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 291 


in southeastern Alaska. He testifies that he is the superintendent 
of the native schools in southeastern Alaska and has charge of 
the schools at Hydaburg, Klawock, Juneau, and Douglas, and that 
he has been familiar with conditions at Hydaburg and Klawock 
since 1911: 

Q. Now, what, if anything, have the natives of Klawock done in the way 
of recognizing tribal government since yon have known them?—A. Nothing. 

Q. Has there becm any tribal government of any kind at Klawock since 
1911?—A. None at all. 

That is the testimony of the superintendent of the native schools. 

Q. What, if anything, do the natives at Klawock now do, or what have 
they done since yon have known them, in the way of recognizing tribal rela¬ 
tions?—A. There is nothing in recognition of tribal relations. 

Q. Now, what, if anything, have the natives at Klawock done in the way of 
adopting tlie habits of civilized life?—A, .T\ist the same as is common in other 
commnnities in Alaska—living as citizens, carrying on industries. 

■ Now, he testifies that conditions at Hydaburg are about the same 
as at Klawock, if anything, a little more marked; that more progress 
has been made there and that more newspapers and magazines are 
subscribed for: - 

Q; Are newspapers and magazines subscribed for at Klawock?—A. Yes, sir. 

Q. To quite a considerable number?—A. To quite an extent. 

Q. By the natives?—A. By the natives; yes, sir. 

Q. And at Hydaburg, that is even more so?—A. Yes, sir. At both of these 
places they have the weekly Seattle papers for sale there in the town, both 
at Klawock and Hydaburg. 

And at one of those places they run a paper of their own edited by 
natives, and the newspaper is here in evidence as an exhibit. Now, 
testifying about the Juneau natives, Mr. Hawkesworth says: 

Q. Do you know those natives?—A. Most of them I know. 

Q. Are you familiar with their mode of life?—A. Y"es sir, 

(y And the manner in which tliey regulate their affairs?—A. Yes, sir. 

c}. You also have charge of the school situated at Juneau, a native school?— 
A. I do. 

Q. How long have you been acquaiuted with the Juneau situation?—A. Since 
the summer of 1916. 

(y Since you have been there have th<‘y had any tribal government at Juneau 
among the natives?—A. None. 

Q. Have the natives residing at Jm eau recognized any tribal authority?— 
A. None. 

Now, he goes on to say that all these things are self-evident, and 
the question is : 

Q. I know, hut you must remembei’ that while these things are self-evident to* 
vou I desire to get this matter in the record, I wish you would explain as fully 
iis vou can the mode of life followed by the natives at Juneau as compared with 
the habits of the civilized inhabitants.—A. Well, they live in regular in¬ 
dividual homes for the most part, have regular furniture, do their cooking m 
the regular way, have regular occupations, some mining, others fishing, others 
boatbiiilding, and each depends upon his own efforts for his living. 

Omitting a portion. 

O \nd educate their children?—A. The same way. In the matter of edu¬ 
cation why our native schools take them up as far as the fifth grade, and then 
all th(>se that go bevond that are received into the city schools here in .Tuneau; 
the idea being the native school will do the primary work and as soon as they 
go iK^yond that the city school continues the education. 


292 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Now, he testifies, and so does Mr. Waggoner in the same way, as 
to the Indians at Douglas: 

Q. Whsit is the c'oiulitioii at Douglas; you know the natives there, do you not, 
also?—A. Yes, sir 

Q. Do those natives there recognize any tribal authority?—A. As far as I 
know, they never have had any in Douglas, 

Q. Do they recognize any kind of tribal relations at Douglas at the present 
time, or for the past number of years?—A. No, sir. There was just that mis¬ 
statement in the paper last fall about this Jimmie Fox, that he was to succeeil 
his uncle; but Jimmie came to the school teacher the next day and said that 
that was a mistake; that he didn’t want to be any successor to his uncle, so 
he had an article published in the newspaper saying he was an American citi¬ 
zen and was proud of it, and that he wasn’t the successor to his uncle. 

Q. There was no chief located at Douglas, then, last fall or any other time 
since you have been there?—A. No, sir. 

Q, And there has never been any chief since you have been here?—A. No, 

sir. 

Q, Is there any difference between the manner in which these people live 
and the manner in which white people of similar station in life live?—A. No, 
sir. There are whites and natives in that beach section of Douglas, and you 
can not tell which is the white man’s house and which is the native’s; they 
all look alike. 

Q. Either on the inside or the outside?—A. About the same. 

Now, with reference to this reservation at Juneau. This reserva¬ 
tion at Juneau originates wholly in the imagination of the contestant. 
Contestant says in his brief, on page 117: 

The third Indian reservation from which Indian votes were illegally cast 
against this contestant is the Auk Indian Village Reservation, within the cor¬ 
porate limits of the town of Juneau. This tract of land was reserved by vir¬ 
tue of section 8 of the act of Congress of May 7, 1884, entitled “An act pro¬ 
viding a civil government for Alaska.’’ 

He calls your attention to a specific act reserving a specific tract 
of ground. Now, let us see what section 8 of the act of Congress 
of 1884 is.' It provides: 

That the Indians or other persons in said district shall not be disturbed In 
the possession of any lands actually in their use or occupation or now claimed 
by them but the terms under which such persons may acquire title to such lands 
is reserved for future legislation by Congress. 

Indians or other persons shall not be disturbed in the occupancy of 
any lands which they occupy or claim. Judge Wickersham says to 
you in his brief: 

The third Indian reservation from which Indian votes were illegally cast 
against contestant is the Auk Indian village reservation, within the corporate 
limits of the town of Juneau. 

This tract of land was reserved by virtue of section 8 of the act 
of 1884, which is a general provision preserving the right of pos¬ 
session and occupancy to all the Indians of Alaska, and every other 
person, to such lands as they may occupy or claim. If it creates 
an Indian reservation at all it creates an Indian reservation any¬ 
where an Indiim happens to be, and it creates a white reservation 
wherever a white man happens to be. But he says it reserves this 
tract of land in Juneau, although the act simply means that the 
Indians in Juneau, down on the beach, who have their houses there, 
and at Douglas, Ketchikan, and everywhere else in the Territory, 
shall not be disturbed in that occupancy, and that is all it does 
l)rovide. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 293 

It does not say anything about an Indian reservation, and it was 
not intended to create an Indian reservation. It is an imaginary 
reservation, and the one at Douglas is just like it. The evidence 
shows that these Indians residing at Douglas work in the mines 
and go fishing the same as white people who are down there with 
them. He showed yon a map the other day, and he had a red line 
drawn around this Indian reservation; but there never were any 
limits prescribed for this Indian reservation, and no red line can 
be di’awn around it. It formerly included the spot where the gov¬ 
ernor s mansion is to-day, and as the Indians left there they parted 
with title or abandoned their holdings, and the land they occupied 
became open for others. In every town in Alaska the only title 
was occupanc 3 \ I in Nome some years before there were any 
patents granted, and occupancy was the only title, and the act 
of 1884 preserA^ed that occupancy to all persons then occupying 
laiKl. That was to protect the Indians, and to keep them from being 
driven off from where they happened to be. It merely protected 
their occupancy, and did not in any sense create a reservation; but 
the contestant would have you believe that such land, so preserved 
to them for their occupancy, is to be classed with Indian reservations 
in the United States, established by treaty with hostile tribes, who 
were treated Avith as nations and as aliens. 

When they become naturalized under special provision of laAV— 
automatically naturalized—they are members of hostile tribes that 
are being naturalized, and the reason they had to take up their resi¬ 
dence separate and apart from the tribe Avas because they were hostile 
enemies interned on their reservation, and they could not become 
citizens while living together in tribal relations, because it was not 
safe to extend them that priAulege. But the situation in Alaska is 
entirely different. In the treaty with Eussia the only reference to 
Indians is in article 3, which provided that the inhabitants of the 
ceded territory, if they desired to preserve their allegiance to Eussia, 
might return to Eussia within three years, but that if they should 
prefer to remain in the ceded territory they, with the exception of 
the uncivilized natiA^e tribes, should be admitted to the enjoyment 
of all the rights, advantages, and immunities of citizens of the 
United States. That had reference to those who were then here and 
did not refer to their descendants. It is provided that the un¬ 
civilized tribes Avill be subject to such laws and regidations as the 
United States may from time to time adopt in regard to the aborig¬ 
inal tribes of that country. 

Now, we had a situation there that this country never had before. 
This country neA^er had anything to do with Indian tribes and reser¬ 
vations except those that were originally made for tribes which, at 
one time or another, had been hostile, and by treaty they Avere re- 
moA^ed west of the Mississippi and they were interned; they Avere 
dealt with as nations and treaties Avere made Avith them, but there 
never was any treaty made with any Indian tribe in Alaska. The 
word “ tribe ” up there is used to describe a race and that is all. 
There we made a purchase and there were aboriginal people there, 
and in 1867 the right of citizenship was extended to the Eussian 
citizens who chose to take advantage of it, that is, those who AA^ere 
there, but after we purchased Alaska from Eussia a Eussian Avho 


294 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

was born in Alaska was born in the United States and became a 
citizen the same as if a Chinaman was bom up there, he would be a 
citizen. There is no legislation on the subject of what becomes of 
those aboriginal Indians who never were hostile tribes, and there is 
room for the argument that every one of them after that, who was 
born there, became a citizen of the United States. 

We did not have to confer citizenship on everybody who was in 
the territory when we bought it, but we did have to confer citizen¬ 
ship on everybody who was born in the United States territory, un¬ 
less he were born in some part of a territory, on some Indian reser¬ 
vation, which could not give him citizenship by law. The Consti¬ 
tution provides that there shall be no discrimination on account of 
race, color, or previous condition of servitude. That is just a sug¬ 
gestion and it is not to be followed in this case, because the circuit 
court of appeals has recognized that these tribes in Alaska are to be 
considered as Indians with reference to the a-^t providing for auto¬ 
matic naturalization if they sever their trib;il relations and adopt 
the habits of civilized life. I think that act which provides for 
Indians becoming naturalized if they take up their residence sep¬ 
arate and apart from any tribes, was passed with reference to the 
hostile nations, the Indians interned on reservations, and did not 
apply to Alaska natives. 

Mr. Chindblom. You said “ civilized,” but you mean “ nat¬ 
uralized ” ? 

Mr. Grigsby. Yes; become naturalized,' by adopting habits of 
civilization. But the circuit court of appeals says they do come 
within it and that settles it. We will say. then, that they have to 
sever their tribal relations and take up habits of civilized life, but 
does that mean that before they can vote they have got to go oil 
and make a home for themselves somewhere else, leave their prop¬ 
erty and leave each other, unless they are living in tribal relations 
as an organized tribe. Furthermore, gentlemen of the committee, 
in the last contest it appeared that a lot of votes were legally of¬ 
fered from the town of Klawock. There were 28 or 30 Indians that 
went over to Craig, about 20 miles away, to vote. George Demert 
and a man named Pretovitch went up and actually tendered their 
votes. I believe Pretovitch was part Austrian. The judges of 
election would not receive their votes, and then all of the others 
turned around and went back, that is, the other 28 abided by that 
decision. The committee on elections on that question, which was 
thoroughly briefed and discussed as it has been here, slipped over 
it without much discussion. They said they would not throw out 
any Indian votes for the reason that the evidence was so unsatis¬ 
factory that they could not discriminate between one Indian and 
another, but they allowed those two votes for Mr. Sulzer on the 
expressed ground that they were citizens of the United States, but 
did not allow the other 28. However, they were in the same class 
and there was no distinction between them, but it was insisted that 
they did not try to vote, and right there Mr. Sulzer, in my opinion, 
lost 28 votes that should have been allowed, and I think the authori¬ 
ties are unanimous in that proposition. 

The Chairman. They did not present themselves, however? 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 295 

Mr. Grigsby. They were there, according to the evidence, together, 
and all went there for the purpose of voting; two presented them¬ 
selves but the others did not. 

The Chairman. And the committee held that the two should have 
the right to vote ? 

Mr. Grigsby. That the two should be allowed to vote and yet the 
evidence was the same as to all of them. 

Mr. Elliott. But the two were not alloAved to vote at the elec¬ 
tion? 

Mr. Grigsby. No, sir. 

Mr. Elliott. What did the committee do by stating they should 
be allowed to vote? 

Mr. Grigsby. They counted those two votes. 

Mr. O’Connor. And as to the others the committee held they 
should have presented themselves and been objected to or challenged. 

Mr. Grigsby. The committee did count them. 

Mr. O’Connor. The 26? 

Mr. Grigsby. No: the two. 

Mr. O’Connor. Because they went there and presented them¬ 
selves ? 

Mr. Grigsby. Yes. The committee evidently went on the theory 
that the others should have presented themselves. The rule in that 
respect in some purisdictions is that you can not count a vote that 
has not been cast; if it is offered and wrongfully refused it can not 
be counted, while in other jurisdictions a vote that is wrongfully 
shut out can be counted and counted for whom it would have been 
cast. But the invariable rule is that it is not necessary for all of a 
class to present themselves and in that connection I will read from 
section 139 of Ruring Case Law: 

Where voters are rejected because they belong to a certain class it is not 
necessary to establish the fact that those who actually applied and were 
rejected were .sufficient to change the result of the election. The erroneous 
rule adopted by the election officers affects the entire class and they may 
submit to it without waiving any rights. Though they do not present them¬ 
selves at the polls and offer their ballots, they have the right to take notice of 
the decision of the hoard in other cases precisely like their own. 

That is a law which was not called to the attention of the com¬ 
mittee before. If it had been- 

Mr. O’Connor (interposing). Where is that? 

Mr. Grigsby. It is from section 139, elections, found in Ruling 
Case Law, and there is no authority to the contrary. 

Mr. O’Connor. What volume of Ruling Case Law? 

Mr. Grigsby. Volume No. 9, Ruling Case Law. That was the 
decision of the committee on this very question, that the voters from 
that reservation were allowed to vote, and the evidence showed, as 
it shows in this case, that Demmert, this man whose vote was counted, 
Avas at that time a native born Indian, living over there in that vil¬ 
lage, and a member of this native council. Under the territorial law, 
they have a city council elected by themselves. He was secretary of 
the lodge. They have an Indian brotherhood over there. He was 
associated with the Indians just the same as they were associated Avith 
each other. Judge Wickersham did not dispute, in fact he said that 
he did not dispute, that they were highly civilized, but they had not 
severed their tribal relations; they had not left this tract of land. 
Demmert had not done it when his vote was counted. 


296 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


I want to show you what kind of a fellow this man Demmert is. 
Here is Demmert’s testimony on page 414 of the record: 

Q. What kind of a house do yon live in?—A, Well, I have got a bungalow, 
26 by 28 feet . 

Q, How many rooms?—A. Five rooms. 

(}. How much did it cost?—A. Why, the house alone cost about $1,200. 

Q. Now. what are the furnishings in it, in a general way. I mean?—A, Well, 
sir; I have got chairs, beds, a piano, and a talking machine; in fact, all the 
necessary equipment to have a happy home. 

And then he is asked with regard to the other Indians: 

Q. Where did these all reside?—A. They all lived at Klawock. 

Q. Are they Alaska natives?—A. Yes, sir. 

(}. How long have you known these gentlemen?—A, Why. I have known them 
for quite a number of years. 

Q. Do you know whether they can read and w’rite the English language?—A. 
Yes. sir. 

Q. Can they or can they not read and wudte the English Language?—A. Well, 
the majority of them, pretty near all of them, can read and wu’ite and speak 
the English language, in fact all of them can speak pretty good English. 

He further testified, record, page 415, that they had severed their 
tribal relations and adopted habits of civilized life; that they had no 
chief: that he never satv any tribal customs among them; that a good 
many were licensed engineers: and on page 416 he is asked the ques¬ 
tion : 

Q. How' much are you worth?—A. I should judge pretty close to $30,000. 

Q. How’ about the other natives whose names I have read; are they property 
owmers?—A. Yes, sir; everyone, I think does. 

Q. You mean everyone are property owners?—A. Yes, sir. 

Q. And are some of them w’orth as much as you are?—A. Some are worth 
more. 

The deposition of this Indian, Demmert, was taken up at Juneau, 
because his wife was sick up in the hospital. He is dressed as well 
as any of you gentlemen, speaks as intelligently as the ordinary 
workman, or more so, and was free to go to Europe or South 
America, or anywhere he wanted to, and did not bear the least re¬ 
semblance to one living according to any old Indian customs or in 
any tribal relations. He is down there, according to the testimony, 
living with others like him, who have been brought to that condition 
and aided in coming to that condition by the fact that the Govern¬ 
ment did reserve this land for their use and allowed them to go on 
it, where they could be educated, and it has been very much of a 
success. 

Now, I will spend but a few moments in going over the votes cast 
for Mr. Wickersham which I claim to be illegal; but, first, I want to 
show that with reference to these Indians at Juneau and Douglas, 
who Mr. Wickersham claimed voted for Sulzer, there is no evidence 
in the record as .to how they voted, except that taken in rebuttal by 
him. He put his evidence in, in rebuttal, which should have gone in 
in chief, and, of course, we had no chance to rebut it, and up until the 
time he put the evidence in, in rebuttal, the only evidence was in the 
form of affidavits, which, of course, are not proper evidence, as we 
had no chance to cross-examine. But, aside from that, it is not 
proved that a single one of them was a disqualified voter, and that 
he was not a resident in every sense of the word, as much as an 
Indian could be. In rebuttal, about six or seven of them swore they 
voted for Sulzer. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 297 

Mr. CiiiNDBLOM. Did I understand you to say you could not cross- 
examine his witnesses that were offered in rebuttal? 

Mr. Grigsby. We could cross-examine them, but we could not rebut 
those that testified in rebuttal. They were not called in, in Mr. 
Wickersham’s case in chief, to prove who they voted for, but in re¬ 
buttal. AVe could not contradict them or offer any evidence going to 
offset their testimony. 

Mr. Chtndblom. Could you not have offered evidence in surre- 
buttal? 

Mr. Grigsby. The statute does not provide for it. The time for 
taking the testimony expires in 90 days, and Mr. AVickersham has the 
last 10 days under the statute for rebuttal, and that ends it. Other¬ 
wise we could have kept on taking testimony forever; but I had a 
right to meet his case which he put in in chief. He was up there 
scrambling for evidence, and he gave his evidence and put it in. 
There is a limit to the time that is allowed a contestant or contestee, 
and I used my 40 days in trying to offset what he introduced, and 
then he put some more evidence in, in rebuttal, that should not be 
considered by the committee in any way. There is evidence by the 
Indians who testified, by AA^aggoner and Hawkesworth, as to their 
being citizens of the United States, living under no tribal relations 
whatever, and not living on any reservation of any kind, but simply 
in possession of land which the Government protected them in the 
possession of, the same as it did the white people. In southeastern 
Alaska there are no Indians living under a chief. Down in Ketchi¬ 
kan, where they voted for AA^ickersham, they do not live under a 
chief. They come nearer to it than anywhere else in southeastern 
Alaska, according to the record, but they do not, and I do not claim 
that they do live under a chief. 

Mr. Hudspeth. Have they always voted? 

Mr. Grigsby. No; those who voted at Juneau never voted before, 
those that voted at Douglas never voted before, those that voted at 
Ketchikan for AA^ickersham never voted before. Those down at 
Ketchikan have lived in the Indian village for 20 or 30 j^ears. 

Mr. Hudspeth. AA^hy have they not voted? Did they think they 
did not have the right to vote, or just ascertained that they had, or 
what was the state of their minds, do you know ? 

Mr. Grigsby. The elections commenced to get close, and that is 
the reason they voted. Down in Ketchikan they had nfever voted be¬ 
fore they went up and voted for AATckersham. They live in an 
Indian village in Ketchikan, and have always lived there, protected 
in their possession under the same act. The only difference between 
the Ketchikan and Juneau Indians is that the city council of Juneau 
refrained from attempting to tax the Indians, and the evidence in 
this case shows that those at Ketchikan submitted to a tax in 1918. 
There was as much legal right for the Indians in Juneau to get a 
patent and pay a tax as there was for the Indians in Ketchikan, 
when you come to the test. 

Judge AATckersham stands on the proposition in this case that 
these Indians on these reservations live there in tribal relations; 
that they have not taken up their residence separate and apart from 
any tribe; but that those in Ketchikan are also living together in 
an Indian village. I will read you the testimony of some of them. 
I will go back and get to them in their order. 


298 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY, 


I shall now discuss the illegal votes cast for Judge Wickersham. 
I have a list of them, which the committee asked me to furnish, 
which I will ask to have inserted in the record at this point. 

LiM of persons clahned hy contestee to hare voted illeyally for Wiekershnm for 

Delegate to Congress on Nov. 5, ]91H. 

ILLEGAL BECAUSE VOTED IN WRONG PRECINCT. 


Olaf Thorensen, 
Charles Starish. 
James Starish.. 

Sam Olson. 

George Booth.. 
Louie Hudson. 
Mark Williams. 


Name. 


Record page. 


Remarks. 


410 

465 

408 

480 

497 

505 


508 


William Zacharias.. 
Mrs. Wm. Zacharias 

J. L. Lemoin. 

J. B. Hudson..'. 

L. Raynor. 

E. G. Stokes. 

Tom B. Hyde. 

Mrs. A. L. Spencer.. 

Harry Osborn. 

N. W. Carpenter- 

E, W. Brown. 

Martin Claich. 

William Canning.... 

D. L. Green. 

Ernest Peterson. 

E. R. Peonies. 


30.3.305.308 

363.305.308 

303.305.308 
303,305,308 
303,305,308 
303,305,308 
303,305,308 
303,305,308 

100,109 
100,109 
630 
030 
630 
036 
636 
030 


Also voted in wrong division. 
Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 


Sylvester Howell 


030 


Also between 6 and 10 illegal votes at Anchorage: depositions from Anchorage. 
Also 23 additional at Fairbanks: Fairbanks election regislralion book. 

NOT RESIDENTS OF THE TERRITORY. 


Mrs. Hans Hansr>n. 

300 


W. H. Hannum. 

458 


Mrs. W. H. Hannum. 

40? 





NOT CITIZENS OF THE UNITED STATES. 


Gus CozaVas. 

301 


Arthur Cinkiis. 

300 


William Garrie. 

377 


Mat Fawcett. 

514 


SOLDIERS IN THE REGULAR ARMY WHO TESTIFIED THEY VOTED FOR WICKERSHAM. 

Clement Stroiipe. 

321 

Contestee does not concede illegality of any soldier 
votes: but all of these named, except Joseph 
Newman, were clearly illegal volers, if any are; 
and .Joseph Newman probaMy reenlistcd in 
Alaska. 

D. Ti. Tver. 

205 

H. W. Whitman. 

2.52 

H. Labisky. 

03 

James W. McConnell. 

Josei'h Newman.. . 

320 

213 


AFOGNAK PRECINCT, PUBLIC RESERVATION, INHABITED BY INDIANS LIVING IN 

TRIBAL RELATIONS. 


Toraothy Mava. 

388 

Aleut Indian living in tribal relations. 

Do, 

MatfrayAgrick..- 

382 

Michael Boskosfsky. 

384 

Do. 

Evan Alhoon_. 

390 

Do. 

And many others. 

390,391 

Containing list of 52 voters, many of whom were 
Indians living in tribal relations; and the others, 
white persons, who were trespassers and could not 
acquire legal residence. Wickersham carried this 
precinct, 37 to 12, See record 1916 contest. See 
testimony Fr. KashevarofI, page 248, record, 1916 
contest. 





































































WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 299 


TjUt of persons eJnhncd hi/ eoutestce to have voted illegall!/ for Wiekersharn for 
Delei/nte to Cont/ress on Nor. 5, tOtS —Continued. 

UNCIVILIZED INDIANS VOTING AT KETCHIKAN. 


Name. 

Record page. 

Remarks. 

Charles Starish. 

465 

Also illegal; voting in wrong precinct. 

Do. 

James Starish. 

468 

George Booth. 

497 

Do. 

Louis Hudson. 

505 

Do. 

Mark Williams. 

568 

Do. 

George James. 

5:31 

Joe Starr. 

527 


George Keegan. 

529 


Herman Ridley. 

526 


Edward Ridley. 

524 


Joseph John. 

522 


Mat Fawcett. 

514 


James Starr. 

511 


George Johnson. 

508 


Also about 30. 

529 

Same class of ^'oters. See testimony of above 
Indians and that of George Keegan. 



^Ir. (trklsijy. I will go over this very briefly. There were T votes 
cast in southeastern Alaska, in the vicinity of Ketchikan, for Wicker- 
sham. 

The Chairman. May I ask you one question before you get to that, 
and 1 do not want to take any time either? How many Indians voted 
this time at this election, all told? 

Mr. (iRiGSBY. In Alaska? 

The Chairaiax. Yes. 

Mr. (trkjsby, Three hundred or four hundred. 

The Chairaian. How many had voted theretofore? 

Mr. Grigsby. AVell, these 'Hydaburg Indians had voted, and the 
Klawock Indians had voted, and the Unalakleet Indians had voted, 
and the St. ^lichael and Afognak Indians had voted, and there were 
a good many isolated cases of Indians who had voted, living in differ- 
. ent towns, but the Indians never voted generally as they have in the 
elections of 1916 and 191(S. 

The Chairaian. In what precincts did they vote? Can you give 
them, oflhand ? 

Mr. Grigsba\ I can tell you some of them. They voted in Juneau, 
Douglas, in CT’aig, Sulzer,‘Ketchikan, Afognak, Seldovia, Unalakleet, 
St. Michael No.^ 2, and in St. Michael No. 1. That is where they 
voted generally. Most of the Indians who lived there voted. 

There were seven persons, including two white men, who voted for 
AATckersham in the wrong precinct in southeastern Alaska. The tes¬ 
timony is absolutely clear, the way I view it, as to all of these. 

The Chairaian. What are their names? 

Mr. Grigsby. Olaf Thorensen, Charles Starish, James Starish, 
Sam. Olson, George Booth, Louie Hudson, and Mark AATlliams. 

Mr. O'Connor. For whom did they vote? 

Mr. Grigsby. For AWckersham. They testified they voted for 
Wiekersharn. It is also proved by a process of elimination that 
Harry Osborn and N. AY. Carpenter, whose names are further dovyn 
on the list, arrived in Sulzer precinct, and liA^ed there less than 30 
davs before the election, having been shipwrecked, and they voted at 
Sulzer for AYickersham. Mr. AYickersham proved he received the 
ballots. 






















300 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Mr. M'ickersham. It is not clear that they voted in Sulzer. 

Mr. Grigsby. There is no doubt in regard to it. 

Mr. Chindblom. \ATre they produced as witnesses for Judge 
AVickersham ? 

Mr. Grigsby. No, sir; it was proven by a process of elimination. 
Mr. AAhckersham got but three votes in that precinct, and the witness 
that he called stated that he was one of them, and that the other two 
were Osborn and Carpenter, and he knew it, because they told 
him so. 

Mr. AATckersham. Raffelson testified to the contrary. 

Mr. Grigsby. Raffelson did not testify to the contrary. You will 
have to look at Kaffelson’s. testimony, because he throws a slight 
doubt on it, but at that time, Avhen Mr. AA^ickersham put in this 
evidence, he was endeavoring to prove that all the Indians that 
voted at Sulzer voted for Sulzer, so he proves that the only three 
votes for himself were cast by Osborn, Carpenter, and his witness, 
and therefore all the rest of the votes must have been for Sulzer, 
having been cast by the Indians from Hydaburg, so it does not lie 
in his mouth now to repudiate any of these votes. Any way, the 
preponderance of the testimony is that they did vote for AA^ickersham. 

Mr. O’Connor. Two of those three were Indians? 

Mr. Grigsby. No; they were white men. Harry Osborn, N. AV. 
Carpenter, and a man named Shellhouse, were the three men who 
voted for Sulzer, and those were all the votes he got. He only got 
3 votes, and Shellhouse says, “I am one of them, and these two 
men whom I have named, who were shipwrecked here, are the other 
two, because they told me so.” 

Mr. AA^ickersham. AATll you read the evidence? 

Mr. Grigsby. All right; we will read the evidence. You may 
read it. You are going to reply. The other 47—and if that testimony 
was true, there must have been 47—all voted for Sulzer, which 
included all the Indians from Hydaburg—not the whole 47 were 
Indians, but it included all those from Hydaburg, and the object 
was to show that all these Hydaburg Indians voted for Sulzer, by 
a process of elimination, and he succeeded in doing it to my satis¬ 
faction and to his own satisfaction. 

Now, AATlliam Zacharias, Mrs. AATlliam Zacharias, J. L. Lamoin, 
J. B. Hudson, L. Raynor, E. G. Stokes, Tom B. Hyde, and Mrs. A. 
L. Spencer were, according to the testimony, residents of the fourth 
division of Alaska, and arrived in Cordova shortly before election 
day, and voted, not only in the wrong precinct, but in the wrong 
division. There is no evidence in the record as to how any of them 
voted, except the evidence of Frank Foster. Frank Foster was the 
notary before whom their depositions were taken, and then one of 
the witnesses put in an affidavit of Frank Foster, and it is not proper 
evidence. The other side was not given an opportunity to cross- 
examine Foster, and I claim it should not be considered. 

But you simply have to have these eight people who voted in the 
wrong division. Mr. AA^ickersham put Mrs. Spencer, one of these 
people, on the stand down in Seattle to contradict the statement of 
one AYalker that she had told him she voted for AA^ickersham, but 
AYalker had not testified to that. AA^alker only testified to the fact 
that they lived in Fairbanks division. He did not say he had any 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 301 


conversation with anybody; but Mrs. Spencer testified for Wick- 
ersham down there, and in an attempt to rebut something that Mr. 
Wickersham stated had been testified to was asked how she voted, 
and refused to answer, evidently with the sanction of counsel. He 
hunted her up, and she was a very willing witness. She was told, 
of course, that Walker had testified that he said so-and-so to her, 
and she had said so-and-so to him, and she swore she would not 
speak to the man on any occasion, but she stated it was her own busi¬ 
ness how she voted, and she would not tell, and there is no evidence, 
as we claim, that she voted for Wickersham. 

I know myself how some of these parties voted, but that is not in 
evidence. I know from talks with them how they intended to vote, 
but I will not claim there is any evidence in the record as to how 
any of them voted. 

Mr. Chindblom. Any of those eight? 

Mr. Grigsby. Any of those eight; but there are eight illegal votes, 
and, under the rule adopted by the last committee, they will hav^e 
to be apportioned. Wickersham carried Cordova, and they will have 
to be either approtioned pro rata to the votes counted in the election 
at Cordova or be thrown out. 

Mr. O’Connor. Why are these eight votes illegal ? 

Mr. Grigsby. They voted in the wrong division. They lived in 
Fairbanks and voted in Cordova. If these eight votes were enough 
to change the result of this election, there are two rules to follow: 
One of them is to apportion them to the different candidates accord¬ 
ing to the votes cast in the precinct. This rule has been adopted in 
several cases in the House of Kepresentatives. It is a very poor rule 
and may work an injustice. All the votes may have been for one or the 
other of the candidates. If you can not ascertain how they voted in 
a legislative body having the power to call a new election, that pre¬ 
cinct should be thrown out. But I do not care how you dispose of 
them. It does not make any difference. It will result in a gain of 
about one vote for Sulzer if they are apportioned pro rata according 
to the votes cast in the precinct. 

Now, E. W. Brown, Martin Claich, William Canning. D. L. Dreen, 
Ernest Peterson, E. R. Peoples, and Sylvester Howell are residents 
of the fourth division, and voted at Fairbanks and elsewhere in that 
division, but voted in the wrong precinct. The registration book 
w^hich everybody signs who votes has a column where you state your 
residence, and these people signed from Brooks, Fairbanks, and Hot 
Springs. 

Now, one of the two witnesses who gives testimony in regard to 
these seven persons is John Moe, who is an agent for the suppression 
of the liquor traffic among the Indians, and he testifies from conversa¬ 
tions had with these people, after election and before election, in 
the presence of other people, in which they avowed publicly that 
they were going to vote for Wickersham or had voted for him, and 
that is all the evidence there is. Moe is a Democratic officeholder, but 
Mr. Wickersham says he is a saloon keeper, or was one, and ran a low 
dive in the tenderloin. He also says the same thing about Walker, 
who did not testify to anything except that certain people lived in 
Fairbanks division. And he also said practically the same thing 
about Austin, who testified that Wickersham ran on a Democratic 
platform. 


302 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

The witnesses against him are impeached in that manner, but 
Moe gives the times, the places, and the persons present when these 
conversations took place, and under the authorities that Mr. VVicker- 
sham cites to you gentlemen such evidence can be considered. 

Further than that, Mr. Claich and Mr. Ernest Peterson were called 
in rebuttal to offset this testimony of Moe, and it was attempted to 
proved by Mr. M’ickersham’s attorney that they were in fact resi¬ 
dents of Fairbanks. , . 

Mr. Claich testifies, record, page 679, that his residence was Fair¬ 
banks, but the record shows he spent nearly all of his time away 
from Fairbanks and most of it at Brooks; that whenever he visited 
Fairbanks after the year 1914 he stopped at the hotel, and he regis¬ 
tered in this register from Brooks, in the column where you state 
your residence, and he does not deny that he voted for Wickersham. 
Here a man goes on the stand and said he talked with this man, and 
that he claimed he voted for Wickersham, and in the presence of 
other people, and this man is called to rebut that and makes no 
statement about it. 

Mr. Chindblom. Was he asked about it? 

Mr. Grigsby. He was not asked about, so it is almost conclusive 
that he did vote for Wickersham. He failed to rebut this evidence, 
although he had an opportunity to do so. 

Mr. O’Connor. He was on the stand? 

Mr. Grigsby. He was on the stand, and this man also says that it 
was the general belief that a person could vote in any precinct in 
Alaska where he chanced to be on election day. Mr. Wickersham 
says that all these votes were a willful and deliberate fraud. 1 
say this man did think he had a right to vote at Fairbanks. 

Then Mr. Peterson—record, page 682—testified that he claimed 
Fairbanks as his home and owned a home in Fairbanks, Alaska. 
On cross-examination, however, he admitted that he was mining at 
Brooks, 75 miles from Fairbanks, since 1915; that he voted at 
Brooks in 1916, at which time he was still mining in Brooks; that 
he considered his residence to be in Brooks in 1916. Avhile mining 
there, and that he had been mining there ever since. Peterson also 
registered from Brooks in the election register and further testi¬ 
fied that he believed he could vote in any precinct in Alaska where 
he chanced to be on election day. Now, he registered from Brooks, 
voted in Brooks in 1916, mined there, and considered it his residence 
while he was mining there, and the evidence is clear, and he does 
not deny voting for Wickersham. The other 5 were not on the 
stand, but the fact that they voted in the wrong precinct and for 
AVickersham is proven by lengthy testimony as to conversations had 
with John Moe, this Indian agent, and it is too long to read to you 
gentlemen. 

You will have to read the evidence yourselves and judge of itisi 
sufficiency, to establish how these people voted. It is uncontradicted. 
Moe testifies to time, place, and persons present at the conversations. 

At Cordova, also, going out of that division into the next division,. 
Mrs. Hans Hanson testified that she had never been in Alaska but six 
months when she voted, and she married after she went there, so her 
A'ote, of course, was illegal. She testified she voted for AYickersham. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 303 

\\ . H. Hannum—record, page 458—was also a nonresident of the 
lerritory, according to my contention. He never had been in 
Alaska any one year for a year. He was up there in the country 
on business during the summer but went out in the winter, and never 
had acquired a residence. He did not testify for whom he voted, 
but I asked him the following questions: 

Q. I^kl Mr Wickersham advis(‘ you that you did not have to tell for whom 
you voted?—A I asked him the question. 

Q. M hen?- A. I think it was Saturday evening. 

Q. Where?—A. In the Kevilla Hotel. 

Q. .lust exactly what did you say to him?—A. I said, Will it be necessary 
tor me to tell for whom I voted, and he said, It is not. 

Mr. Hudspeth. Who is that? 

Mr. Grigsby. W. H. Hannum, record, page 459. Mr. Wicker¬ 
sham actually advised one of these men of his legal rights correctly. 

I further examined him as follows: 

Q. Did you have an engagement to meet him at that time?—A. I did not. 

Q. Did he send for you?—A. No. 

, Q. What is the reason you don’t want to tell for whom you voted?—A. I 
\vould like to reserve that right. 

And then I go on after him: 

Q. Do you not know it to be a fact that Mr. Wickersham has advised many 
of , the witnesses, if not all witnesses, that he has called in this contest, that 
it is their duty under similar circumstances, under which you are testifying, to 
disclose how they voted?—A. He never said so to me. 

Q. Do you know as a fact?—A. I don’t know. 

Mr. Wickersham. That was a fact. 

Mr. Grigsby. What was a fact? 

Mr. Wickersham. That I advised all of them that testified. 

Mr. Grigsby. All but this one ? 

Mr. Wickersham. No; I advised him too. 

Mr. Grigsby. Oh, I wdll admit that. 

Mr. Wickersham. He simply misunderstood. 

Mr. Grigsby. All right. 

Mr. Wickersham. That is mentioned in the evidence further along. 

Mr. Grigsby. I know. I will read it. 

Q. Is the reason you don’t want to tell for whom you voted because you 
don’t want to disclose as a matter of personal privilege or because you don’t 
want to hurt Mr. W’ickersham in this contest?—A. Jointly so. 

Q. Both?—A. Yes. 

That is the evidence I have that he voted for Wickersham, and it 
is sufficient. 

Mr. Wickersham. I agree with you. 

Mr. Grigsby. You agree that he voted for you? 

Mr. Wickersham. No; I agree that is sufficient. 

Mr. Grigsby. All right. There is one thing we agree on at last. 

Mr. Wickersham. I want the same rule applied all the way 
through the case. 

Mr. Grigsby. If you have any cases where the evidence is as strong 
as that, I want you to apply it. 

On redirect examination, after Mr. Wickersham has been shown 
up as advising this witness, he asks the witness this question: 

Now, I haven’t objected to anybody’s telling how they voted, and I don’t 
object to your saying how you voted, and I leave it entirely up to you; and if 


304 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

you want to tell I don’t want to make any objection to your telling how you 
voted on November 5, 1918, for delegate; it is up to you. not to me.—A. Well, 1 
decline to tell. 

If Mr. Wickershani thinks that puts him out of the hole, he is 
welcome to all the comfort he can get from thinking so. 

This man’s wife testified but will not tell, or did not know for 
whom she voted. She refused to answer straight out. Now, I do 
not claim there is any presumption that a man’s wife voted the way 
her husband did, and I do not, therefore, care to insist that there is 
any evidence as to how she voted. There is not any, except that 
she was Hannum’s wife. 

Now, gentlemen, I want to go back just a little and interrupt the 
orderly procedure. There was something I overlooked with refer¬ 
ence to the Indian vote. One of the witnesses called by contestee 
was Seward Kunz, who testified on page 408 of the record. Seward 
Kunz was the Indian who interested himself in seeing that the civi¬ 
lized Indians around Juneau and Douglas took part in the election. 
He is the Indian that went to the district attorney’s office and got the 
form of formal affidavit made by Mr. Smiser, which Mr. Smiser told 
them established the prima facie right of an Indian to vote, copies 
of which affidavit Mr. Reagan took over to the judges of election in 
Douglas and delivered, and took them nowhere else. He never 
talked with any Indian that day or any other day as to how he was 
to vote, and took no part in the election whatever, according to the 
undisputed evidence in the record. If Mr. Smiser made any mis¬ 
take it was in not telling these judges of election that when an 
Indian walked up and demanded a ballot as a citizen of the United 
States, that unless he was challenged they should give it to him, 
and if he was challenged, he should be compelled to swear in his 
vote. That is what the statute says. That is all they have to do. Of 
course, if a savage with a tomahawk, and feathers in his head, and 
war paint on, came into the polls, in defense of themselves they might 
shoot him or throw him out. 

But here are Indians in white men’s clothes, working in mines and 
on gas boats, and they walk up to the polls, and the statute applies 
to them, and if they demand a ballot, the only thing that can be 
done with them is to make them swear their votes in, if they are 
challenged; and any affidavit from Mr. Smiser would not affect their 
right to vote at all. But Mr. Smiser had these papers made out in 
which he informed the judges what the law was about the Indians 
having the right to vote, and he stated the law correctly. The only 
place that he made a mistake, if he made any, was in intimating that 
the judges had anything to do with trying that out. They could not 
try out each individual case. If an Indian is entitled to a vote, and 
he walks up to the ballot box, he is entitled to a ballot; and there is no 
form of oath to overcome the challenge interposed except the statu¬ 
tory form, so if an Indian is challenged, this affidavit would not be 
sufficient to overcome it; he would have to swear that he was a citizen 
of the United States, and a resident of the Territory of Alaska. 

Mr. O’Connor. Where is the affidavit? 

Mr. Grigsby. That is here in evidence. It is not an affidavit au¬ 
thorized by law. The Territorial legislature provided a form of cer¬ 
tificate to be issued by the judge of the United States district court 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 305 


to Indians who were able to present the necessary facts to be entitled 
to it; which certificate is prima facie evidence that the Indian to 
whom it is issued is entitled to vote. The judge of the court is not 
authorized to extend the right of suffrage to Indians, but simply to 
issue a certificate which constitutes a convenient method of proving 
the qualifications of the Indian. 

To obtain this certificate the applicant has to go before the court 
and undergo examination upon the indorsement of five white citizens, 
and if he is found sufficiently qualified as to the conditions which 
are required to be complied with to make him a citizen, then the 
judge of the court issues him a certificate, which is prima facie evi¬ 
dence of his citizenship, and that is all. The judge has issued tliose 
to Indians in Juneau, in Douglas, in Klawak, and in Hydaburg, so 
that you have a judicial determination that the Indians in all those 
places, if otherwise qualified, can vote, notwithstanding they are 
living there on these so-called reservations, and with each other. 
You have that, and you have your committee report of 1916, which 
shows that they can vote down at Klawak, so that is established. 

Now, Seward Kunz testified that the day before election Judge 
Wickersham’s attorney, Mr. Marshall, met him on the street and took 
him down to the Dispatch office, which is a Aveekly neAvspaper, and 
they tried to get Kunz to go out and do some Avork among the Indians 
for Mr. Wickersham, and they argued Avith him about the fish bill. 
Mr. Wickersham Avas making his campaign upon the Sulzer fish bill. 
But SeAvard told him he could not do anything. Mr. Wickersham 
spoke up and he said “ he had Nigger Watson doAvn at Craig ”; that is 
where the Klawak Indians Amted, and AAdiere a lot of other Indians 
resided; that he had “Nigger” Watson doAAm at Craig working for 
him, and that he Avas getting all the natiA^es down there interested in 
the election for him, that is for Wickersham, and he told him that 
“Nigger” AVatson AA^ent to his oAAm expense getting these sample 
ballots printed, and other matters; took a trip over to Craig at his 
own expense, “ and the only word I said Avas I could not afford to do 
that. If I had a little time and could have done a faAmr, I Avould, but 
it Avas too late; it Avas the night before election, and I could not do 
anything. All I could do Avas to accept these ballots from him and 
the others.” 

He had both AVickersham ballots and Sulzer ballots, and these 
papers from the district attorney Avhich he, says he took to the Indians 
that he considered ciAulized, but that he did not urge any of them to 
vote in any particular manner. 

Then Mr. AATckersham’s attorney, Mr. Marshall, cross-exUmines 
the Avitness, and he admits by his questions that eA^erything that 
Seward Kunz said Avas true about the conA^ersation. He says: 

Q. Wliere did I pick you up, do you reiueml)er?—A. Ki^>;lit here iu front. 
No; it Avas over here, the first time I met you, right across fromi Burford’s 
corner. 

Q. Wasn't it just as you came out of the Democratic headquarters down 
liere below the Alaska Hotel?—A. No; it wasn’t. 

Q. What Avas the principal topic of the conversation doAvn there at the Dis¬ 
patch office Avhen Ave Avent doAvn there?— A. All I understood, you took me 
doAvn there and you shoAved me a plat of the trap site,, the tishing gear, and 
you shoAA'ed me Iioaa’ it Avas situated, and I did not \inderstand anything about 
it I told vou I did not understand tishing and could not say anything about it. 

Q. Well,' Avasn’t the main subject of my conversation doAvn there because of 

181744—20-20 


306 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


the Siilzer fisheries hill and its effect on seine fishermen in Alaska, all fishermen 
except trap fishermen?—A. Something to that effect, but I didn’t understand 
fishing, I told yon that that evening. 

Q. Well, that was the main topic?—A. That was the main topic; yes, sir. 

Q. And didn’t Judge Wickersham tell yon that he had explained that hill 
down at Ketchikan and that among others who had listened to his explanations 
and talked to him about it were some native fishermen and that they were pretty 
much worked up over the fact that that hill would dei)rive them of the oppor¬ 
tunity to fish?—A, Something to that effect; yes, sir; as near as I can remember. 

Both Mr. Wickersham and Mr. Marshall Avere there, but they did 
not contradict Seward Kunz's testimony. They ^ot him down there 
and tried to get him to go out and Avork among these A^ery Indians 
Avhose A’otes he is attacking noAV. When George Demmert took the 
stand he referred to this “Nigger” IVatson that Mr. IVickersham 
told Kunz Avas doAvn there getting the Indians at Craig to vote for 
him. On cross-examination by Mr. Rustgard, contestant’s attorney, 
George Demmert, testified as folloAvs (record, p. 420) : 

Q. Do yon know how those natives [referring to Klawockl A'oted ; aa’Iio they 
A’oted for?—A. No, sir. 

Q. I mean the last election, November .I, 1918?—A. No, sir; bnt Watson Avas 
doAA’n there pretty stnmg for Wickersham. 

Q. Who?—A. “Nigger” AVatson. 

Q. He doesn’t live at Klawock, does he?—A, Why he was there (piite a while 
before the election. 

Q. At Klawock?—A. Yes, sir. 

Mr. IVickersham and his attorney got SeAAuird Kunz doAvn to the 
Dispatch office and tried to get him to go out and work among the 
natives in Juneau and Douglas and give them ballots, and Mr. IVick- 
ersham states that he sent “ Nigger” Watson down to AAmrk for him 
at Craig; George Demmert says that “Nigger” IVatson was at 
KlaAvock Avorking for Mr. MTckersham among the natiA^es; and the 
vote Ave saAv at Craig Avas 47 to 50, so he must have done pretty good 
work. 

Mr. Elliott. Is Watson a Negro? 

Mr. Wickersham. He is an Indianr- The evidence shoAvs that. 

Mr. Grigsby. Demmert testifies he is a Negro, Mr. Wickersham. 
He may be half and half. He lives with the fishermen, 

Mr. Hudspeth. What nationality are these fishermen? 

Mr. Grigsby. The fishermen are of all nationalities. The Indians, 
of course, all fish, and the fishermen are composed of every nation¬ 
ality. 

The Chairman. You refer to these fishermen. Are they employed 
by some one to do this fishing, or do they do the Avork on their own 
account ? 

Mr. Grigsby. The Indians? 

The Chairman. Yes. 

Mr. Grigsby. Some of the Indians Avork in the canneries in various 
capacities, and some of them go out fishing for themselves to get in 
a supply of fish for the Avinter. Some fish for themselves and sell 
their fish to the canneries, and are not employed just the same as 
Avhite men, Avith this distinction, that some Indians fish for the pur¬ 
pose of getting fish to dry for food for the winter. 

Mr. Chindblom. Are these Indians Eskimos? 

Mr. Grigsby. No, sir. These southeastern natives are Indians. 

Mr. Chindblom. Are any of these Indians who Amted here Es¬ 
kimos? 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 307 


Mr Grigsby. There are some at Xome, at St. Michael and Unala- 
kleet, but none of those that we have been talking about. 

Mr. C htndblom. None of the Indians of whom complaint is beino* 
made here are Eskimo Indians? ^ 

Mr. Grigsby. None that have been discussed so far. There are 
some that I do not expect to discuss. 

Xo^^^ to return to the illegal votes cast for Wickersham, Mrs. 
Hans Hanson did not live in the Territorv over six months, but 
voted for AVickersham at Cordova. 


^ Gus C oza^as testified that he voted for AA ickersham. 

He was not a citizen of the Ignited States. 

Arthur Pinkus refused to testify how he voted, but stated that he 
^oted at Cordova. Dr. Dooley, Mr. AA ickersham’s attorney, in¬ 
structed hirn he did not have to tell for whom he voted, and acting 
on that advice or independently of it he refused to state. But Mr. 
Dooley, IMr. AATckersham’s attorney, put in an affidavit signed by 
Pinkus to the effect that he was a citizen of the United States, which 
was sworn to before the deposition was taken, showing that Mr. 
AA'ickersham’s attorney got busy to head this fellow off from testi¬ 
fying before he was put on the stand. Now, the question is whether 
you can draw a sufficient inference from it to determine how he 


voted. I think there is quite a strong inference that this man voted 
for AA^ickersham. 

AAdlliam Garrie, record, page 277, was an alien and not a citizen, 
and voted for AA^ickersham and testified so. 

Mat Fawcett, a nonresident, not a citizen of the United States, 
record, page 514, voted for AA^ickersham. 

Mr. AVickersham. Did Mat finally sign his affidavit? 

Mr. Grigsby. Yes. Over in Afognak there are a lot of Indians 
that live in tribal relations, according to the testimony in the last 
contest and in this contest, and have a chief. It is testified to by 
Martin Larsen (record, p. 381) that the Aleuts at Afognak have 
a chief; that they live in an Indian town; and, furthermore, Afognak 
is a reservation. It is not an Indian reservation, but it is a reserva¬ 
tion for fish culture: and in one paragraph of the order of 1892, 
signed by President Harrison, creating this reservation it states: 


Warning is hereby expressly given to all persons not to enter upon nor 
occupy the tract or tracts of land or waters reserved by this prcx'lamation, or 
to fish in or use any of the waters herein described or mentioned; and that all 
persons or all corporations now occupying said island or any of said premises, 
except under said treaty, shall depart therefrom. 

Xo person, therefore, has a right to be on the reservation except 
those who obtained that right by the treaty of purchase. The In¬ 
dians are all living together, and the Aleuts are full-blooded In¬ 
dians. They ha\ne a chief, and the creoles have a chief, too; but the 
creole is a half-blood Russian and may be entitled to vote as being 
a descendant of a man admitted to citizenship by the treaty. 

These Indians are more or less civilized; the Government has 
schools for them; they have gardens; and the fact is testified to as to 
their civilization, but they live under a chief. In 1916 the priest 
there. Father Kashevarof, testified as follows: 

Q. Do you know whether the Aleuts residing in the Aleut village at Afognak 
have a chief?—A. They do. 

Q. What is the name of the chief?—A. (iregori Yakanak. 


308 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Q. Do they live there in trihnl i-elations; that is, does the chief have control 
of them?—A. The chief acts as their representative in any needs they may have 
for him, especially when they are in need or destitute. When the fur laws 
have been passed, they look to him to advise them when they can hunt, and 
when the season is o])en and when it is closed. 

Q. Now, do all the memhers of the tribe of Aleuts obey their chief?—A. Yes, 
sir. 

Q. That has been the case for many years gone by, has it not?—A. It has. 

Q. They are now living in the same tribal relations that they did 25 years 
ago?—A. Yes; only a good deal better now. 

Q. So far as their obeying the chief, it is the same now as then and always has 
been?—A. Yes. sir. 

Q. By Aleuts you mean the aboriginal race in Alaska and their descendants, 
do you not?—A. Yes, sir. 

(Tre<fori Yakanak was their chief, and testified in the last contest 
through an interpreter, as follows: 

Q. State your name.—A. (^regori Yakanak. 

Q. Where do you live?—A. At Afognak. 

Q. What part of the town do you live in?—A. In the Aleut village. 

Q. Are you the chief of the Aleut Village of Afognak?—A. Yes, sir; I am. 

Q. Were you the chief at the time of the election in November last year?—A. 
No. 

Q. ^^'ho was chief?—A. I misunderstood your question before. Yes; I was 
chief. 

Q. Did you vote at the election held at Afognak on the 7th day of November, 
1916, at which there was a Delegate to Congress voted for?—A. Yes, sir. 

Q. Can you read or write the English language?—A. No. 

Q. Can you I'ead or write the Russian language?—A. No. 

Q. Can you speak the Ru.ssian language?—A. No. 

Q. Can you speak the English language?—A. No. 

Q. The only language you speak and understand is the Aleut language, is. it 
not?—A. That is it. 

Q. Who did you vote for at the election held on the 7th day of November. 
1916. at which a Delegate to ('ongi’ess was elected?—A. I don’t know, I have 
forgotten. 

(.}. \Miat did 3 'ou do when you came to the place where they were holding the 
election?—A. I had somebody write it forme, and I then put it in the box. 

C). Did you tell any person who ^vrote it for you who you wanted to vote for 
for Delegate to Congress?—A. I have forgotten. 

Q. Did .lohii Taushwak write your ballot for you?'—A. I have forgotten. 

Q. Did you tell the person wh<> wrote on your ballot who you wanted to vote 
for for Delegate?—A. I have forgotten whose name I told him to put on the 
ballot. 

Q. Who told you to come up to the place where they were holding the election 
and vote?—A. No one; everybody came up and I came along. 

Q. Did ]Mr. Petellin lix your ballot for you which you put in the box?—A. I 
don’t know, but I think not. 

Q. Do you know any person that you voted for at that election?—A. I do not. 

Q. For whom did you vote for attorney general?—A. The interpreter says 
he can not interpret this in the Aleut language. 

Q. For whom did you vote for senator?—A. The interpreter says he can not 
interpret this in the Aleut language. 

At Afognak in 1918 there were 87 votes cast for Wickersham and 
12 for Sulzer. The testimony in this record shows that 5 of those 
that were cast were by Aleut Indians, and that 3 of them, at least, 
voted for Wickersham, and that they lived under this chief in this 
Indian village, where they recognized tribal relations for the last 
25 years, at least. There are many other Indians there who voted at 
the election and whose vote is not proven for anybody. 

The Chairman. You say there were 53 votes cast at that pre¬ 
cinct ? 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 309 


Mr. Grigsby. Thirty-seven for AVickersham, 12 for Sulzer, and 3 
for Connolly. That would be 52, I think. There is a list of these 
voters on pay 390 of the record: Connolly, 3 ; Sulzer, 12; AA^ickersham, 
37 . The evidence in this record is that Evan Alhoon, Mike' Boskof- 
sky, Matfrey iVgick, and Nicolai Agick—not Nicolai Boskofsky, but 
he is probably a brother of the other Indian—voted for AVickersham. 

Here is Michael Boskofsky, who testified that he voted for AA^icker- 
sham. He said that he could not read or write English or Russian; 
that he did not know who the President of the United States was; 
that AA^ickersham was the governor of Alaska; that he did not know 
who the present Delegate to Congress was; and that the United 
States is a Kingdom. 

Matfrey Agick testified, through an interpreter, that he was an 
Aleut Indian; that he could not read or write English: that he voted 
for AATckersham on November 5, 1918; that one Petellin helped him 
mark his ballot, and others testified to the same effect. Tliree Aleuts 
altogether testified that they voted for AA'ickersham. The testimony 
of Father Kashevarof identified several others of this list of Aleut 
Indians, so that there is an unknown number of illegal votes. They 
are not all Indians living in tribal relations. There are a lot of 
white people there, who could not be on the island except as tres¬ 
passers, and if this precinct was cast out, it Avould result in a change 
of 25 votes. There is probably a question whether there are any 
legal votes there. I do not claim that to set aside this island as a 
reservation for fish culture would take it out of the Territory, but 
when all persons are warned to stay away from there except those 
that are there under the treaty with Russia, then everybody who is 
there otherwise is a trespasser, and if a trespasser under the 
Executive order, can not acquire a voting residence. Some of them 
may be entitled to vote, but just read the testimony in regard to 
Afognak, and then read for whom the civilized Indians of Alaska 
voted in this election. 

I am now going to comment upon the Indians at Ketchikan. 

Mr. Chindblom. Does that reservation cover the whole island? 

Mr. Grigsby. It covers the whole island. There are at least three 
votes of Aleuts living in tribal relations, cast for AA^ickersham. The 
Indians at Afognak are the only Indians in this case proved to be 
living in tribal relations. 

Mr. Hudspeth. How many of those votes were for Sulzer ? 

Mr. Grigsby. Twelve out of 52; 3 for Connolly and 37 for AATck- 
ersham. 

Mr. Hudspeth. AVhat Indians? 

Mr. Grigsby. I do not know who they were. 

The Chairman. Twelve votes in the precinct were for Sulzer? 

Mr. Grigsby. Yes. 

Mr. Hudspeth. You say there were three of the Indians voted for 
AVickersham ? 

Mr. Grigsby. Yes, sir; three swore they did. 

Mr. Hudspeth. Did you have testimony that they voted for 
AYickersham ? 

Mr. Grigsby. Testimony as to three. As to the rest of them it is 
left very much in doubt. 


810 WK’KERSHAM VS, SULZER (DECEASED) AND GRIGSBY. 


Mr. Chindblom. Is that island of Afognak one precinct? 

Mr. Grigsby. I do not know. There is a precinct up there at the 
village of Afognak, but that takes in- 

Mr. Chindblom. Where these Indians voted? 

Mr. Grigsby. Yes; where the Indians voted, and this precinct is 
established right in this Indian reservation. 

Mr. Chindblom. Does the precinct cover more than the reserva¬ 
tion? 

Mr. Grigsby. I do not suppose it covers as much. I will read the 
order here. It is section 232. 

Mr. Chindblom. If all the persons on the island except the Indians 
were trespassers, and the Indians did not have the right to vote, it 
would appear that there is not any such thing as a voting precinct 
there at all. 

Mr. Wickersham. The committee two years ago held that those 
people were entitled to vote. 

Mr. Grigsby. I will read to you in a minute this order of 1892. 

Mr. Wickersham. What are you looking at now, section 232? 

Mr. Grigsby. Yes; section 232 of the Compiled Laws. 

Mr. Wickersham. Page 174? 

Mr. Grigsby. Yes, sir. This is the reservation proclamation. It 
Bays: 

The national forest is hereby changed, and a reservation is set apart as a 
public reservation, including the use for fish culture stations, said Afognak 
Island, Alaska, and its adjacent bays ami rocks and territorial waters, includ¬ 
ing, among others, the Sea Lion rocks and Sea Otter Island. 

Mr. Wickersham. Read the proviso that follows that, will you? 

Mr. Grigsby (continuing) : 

Provided, That this proclamation shall not be so construed as to deprive any 
bona fide inhabitant of said island of any valid right he may possess under the 
treaty cession of the Russian possessions. 

Mr. Chindblom. In the event that there were a bona fide resident 
there he would be entitled to vote, so there is no use pursuing that 
inquiry any further. 

Mr. Grigsby. You will recall the evidence expressly given as to 
persons now living there. Some of them could not vote legally. Of 
course, the native Russians were citizens by the treaty. 

Mr. Chindblom. I know, the native Russians were made citizens 
by the treaty. 

Mr. Grigsby. Here are a lot of white people, not the Russians but 
whites and other inhabitants. But I do not care anything about that. 
There were a lot of Indians there who Avere civilized but had not 
severed their tribal relations. Nearly all these Indians must have 
voted at Afognak for contestant, who is trying to throAv out the 
Indian votes in southeastern Alaska on the ground that they lived 
on reservations. 

I am going back to the Indians at Ketchikan. The evidence is 
that upward of 45 or 50 Indians voted at Ketchikan who ncA’^er 
voted before, and they were led up and voted by Bob Oliver and 
Mr. Hunt, Avho were Wickersham’s supporters. Fifteen of them 
testified they A^oted for Wickersham, and here is the testimony of 
Charles Starish, Avho in education typifies about the aATrage of these 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 311 


Indians. There are one or two of them well educated, but this is 
the average. He testifies as follows, on page 465 of the record: 

Q, How did you come to vote at that timeV—A. A man told me to come 
over—Bob Oliver. I was pass him and .Judge Stackpole, down there standing, 
and he asked me to come over, and so I came over here. 

Q. Bob Oliver and who else?—A. Harvey Stackpole. 

Q. Did they tell you whom to vote for?—A. Yes; they tell me about anyone, 
big piece, sheet paper, name on. You are to mark the names that is. 

Q. What tribe of Indians do you belong to, Charlie?—A. Grizzly Bear. 

Q. Never voted before?—A. Never. 

Q. Where was Mr. Wickersham’s name when you made a mark on it?—A. I 
don’t know exactly; I forgot that. 

Q. Y^ou don’t know what office he was running for?—A. Yes. 

Q. What was the office?—A. Wickersham. 

Q. Wickersham office?—A. Yes. 

Q. What office was he running for; do you know?—A. No. 

Another one of these Indians, Jimmie Starish, record, page 468, 
testified as follows: 

Q. Do you know what office Mr. Wickersham was running for?—A. \Vhat? 

Q. Do you know what office he was running for?—A. No. 

Q. Did you talk to Bob Oliver?—A. No. 

Q. Did Bob Oliver talk to you?—A. No. When I was down in Saxman fellow 
is George Brown; he came down with George Williams; he is a native fellow. 
He come down to take him down to vote, and that day—election day—so I 
came up here. When I come up he leave me before at the post office. When 
I come there I see Mr. Dale Hunt, and he asked me if I voted, and I said “ No,” 
and he says, “ You come with he, then,” and I come up with him right in the 
room, and he went back again. Then they called me at the table to vote, and 
when th4y gave me a paper I write it there again, and .see him, and I heard 
before that, and so I vote Wickersham. 

Q. Can you read?—A. I read a little bit. 

Q. Could you read enough to see his name?—A. Y"es. 

Q. Anybody tell you how to mark it?—A. I had a sample before that time. 

Q. Who showed you the sample?—A. They come out. I don’t know who 
give me that. They had big pile of samples how to mark on it. So I seen 
how to mark by cross. 

Q. Did you have the sample with you when you marked it?—A. I had it 
nearly over one days before I mark. 

Q. And you marked just like the .sample?—A. Just one name they had 
marked on it. 

Q. Rest of it has nothing on it?—A. Just showed this mark and you can 
vote and mark the same thing. 

George Booth testified to about the same thing, and did riot know 
for what office Mr. Wickersham was running. 

Here is George Johnson, who has a big totem pole in front of his 
house in the Indian village of Ketchikan, and pays taxes. He testi¬ 
fies as follows: 

Q. Where did you vote last election day?—A. Mr. Hunt he took me to vote. 
I am not sure. Mr. Hunt he took me to vote. 

Q. Did you get a paper telling you how to vote? When did you get this 
paper?— a'. Mr. Bob Oliver he tell come on go and vote for paper—long paper. 
All right, I tell. 

Q. Who marked the ballot? Bob mark the ballot for you?—A. No; I mark 
same cross. 

Q. Where did you mark the cross on the papers?—A. Across that paper. 

Q. Whereabouts on the paper?—A. Say; take good interpreter. 

Q. Where did you make the cross on paper? Who told you where to put the 
cross?—A. Ylr. Hunt. 

Q. He told you?—A. Yes. 

Q. Do you know what office Mr. Wickersham was running for?—A. No. 

Q. Did* you ever vote before this last election in November? You vote lirst 
time last Nh)vember?—A, In this house? 


312 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Q. Yes.—A. Yes; the first time, Mr. Hunt. 

Q. ]VIr. Hunt and you voted?—A. Mr. Hunt. 

Q. And when yoU got up here you go right to Mr. Hunt? He was one of the 
judges?—A. Y"es. 

Q. Did you ever vote before?—A. No. 

Q. Is that totem pole down there? Is that yours?—A. Yes. 

Q. What does that totem pole mean right up in front of your house?—A. 
Mean before no white man stop. My uncle used that. 

Q. Do you use it—that totem pole?—A. Well, I use this. But, Mr. Cosgrove, 
I tell you totem pole, I tell you by and by. 

Here is the testimony of George Keegan (record, p. 529). A por¬ 
tion of his testimony is as follows: 

Q. You are perfectly sure, are you, that nobody talked with you who to vote 
for or told you you had a right to vote?—A. I never heard nothing about that 
before. It was our first time last year. They hear got right to vote like any¬ 
body. 

Q. And you all came up and voted?—A. Yes. 

Q. How many?—A. I don’t know. - 

Q. A good many?—A. A good many—over 30, I think. 

Q. Over 30?—A. Something like that. Over 30 in Ketchikan now. About 
50 theb:'‘ ' 

Q. All voted?—A. Yes. 

All of these. 16 witnesses, except two, testified that they did not 
know what office Wickersham was running for, and never voted 
before: :;''y v 

Mr. Hudspeth. Now, is it your contention that the Indians who 
voted at Ketchikan were not qualified to vote? Because a man in 
my State can vote who can not read and write, he can have his 
ticket made out for him. 

Mr. Grigsby. I am dwelling on this as a counterclaim, not know¬ 
ing the rule the committee is going to adopt about the Indians who 
live together in Indian villages, but Mr. Wickersham states- 

Mr. Hudspeth. I understand the contention was made by Mr. 
Wickersham that if they lived in tribal relations they are not quali¬ 
fied voters. I want to know if at his Ketchikan box it is your in¬ 
formation that they live in tribal relations there and have a chief. 

Mr. Grigsby. There is soma evidence that the Hyda, Klawock, 
Juneau, and Douglas Indians have lived together in practically the 
samO manner as the Indians at Ketchikan. The lOnly distinction 
is that the city council of Ketchikan saw fit to tax them, but the 
city council of eluneau adopted the other method. 

Mr. Euliott. You say these Indians pay taxes? 

Mr. Grigsby. They paid taxes in 1918. There is no evidence that 
they did before that. I do not know whether they did or not. I 
am about through on that proposition. The idea is that these In¬ 
dians at Ketchikan are no more qualified than any other Indians, 
but more Indians voted for Wickersham than voted for Sulzer, 
throughout Alaska. 

Mr. Hudspeth. Let us get your idea clear on that. Not qualified 
by reason of what ? 

Mr. Grigsby. I have not stated, Mr. Hudspeth, that I maintain 
that these Indians were not qualified to vote. 

Mr. Hudspeth. Well, I want to see if I get you clear, J^Ir. 
Grigsby. Do you base it on the literacy test, on the tribal relations, 
or what do you base it on ? 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 313 


Mr. Grigsby. I do not base it. I simply say that if the mere fact 
that an Indian belonging to a tribe lives in an Indian village with 
other Indians belonging to that tribe disqualifies him, for the reason 
that he has not taken up his residence separate and apart from any 
tribe, then these Indians come within that class more clearly than 
any other Indians that have been testified about. 

Mr. Elliott. In other words, if the committee should hold that 
the Hyda and Klawock Indians are not entitled to vote, these others 
are not either? 

Mr. Grigsby. These others are not either, and then when you com¬ 
pare their civilization and education, which is one of real tests of 
civilization, the Hyda Indians and the Klawock Indians are well 
educated, and can all read and write, and are intelligent, and these 
fellows at Kelchikau are absolutely ignorant. 

Thefe is one more I will comment on. George James, record, page 
531, was examined as follows: 

Q. You never voted before last fall?—A. No. 

Q. Who told you you had a right to vote last fall?—A. Lots of people told 
me Wickersham going to help tishermen, what why I vote. 

Q. All the Indians come up and voted last fall?—A. Yes. 

Q. Lots of them?—A. Yes. 

Q. All for Wickersham?—A. Yes. 


The Indians examined at Ketchikan by myself and my attorneys 
are Charles Starish, Jimmie Starish, George Booth, Louie Hudson, 
George Johnson, and the others whose names are contained on page 
188 of my brief, and the record pages of testimony are there shown. 

Now, I will proceed briefly to discuss the special election. The 
contestant concedes that the special election law of 1915 was valid. 

Mr. Wickersham. No. You have insisted on that so frequently. 

Mr. Grigsby. Well, you contradict me. 

Mr. Wickersham. Yes; I am contradicting you now. 

Mr. Grigsby. But contestant says in his brief, on page 131, re¬ 
ferring to the special election law of 1915, as follows: 


That this limited power of the legislature to prescribe the time for holding a 
spei-ial election to till a vacancy in the office of Delegate was both well under¬ 
stood and fairlv exercised in accordance with the terms of the organic act is 
clearly demonstrated by the following act of the Legislature of Alaska, passed 
and approved on April 29, 1915 : 

And the act referred to provides for a special election to be called 
to fill a vacancy upon 30 days’ notice given by the governor. 

And then he says on page 140 of his brief: 


That the power of the legislature to tix the time for holding the said special 
election to fill the said vacancy was exercised and exhausted by the passage and 
approval of the act of the legislature approved April 29. 1915. 

So I claim those two statements of Mr. Wickersham as approving 
the act of 1915. Therefore he approved calling the election on 30 

da vs' notice. , . , ^ ^ • i ^ 

Now. the orfiaiiic act says that the legislature shall have tiie right 

to fix tilt time for holding special elections, lie said tj'at 
well understood and fairly exercised hy the act of Idlo. Jvow, tiiat 
act was defective, because it failed to provide the manner of gnvin- 
this 30 days’ notice: no methoil was prescribed for the creation of 
liolling precincts; no method for providing for communicating the 
notice to the various election precincts; no method was provided for 


314 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


the appointment of election judges, so you could not hold an election 
under the act of 1915, which he says was within the limited legis¬ 
lative authority of the legislature to pass. But they did, under the 
organic act, provide that an election should be held on 30 days’ notice 
called by the governor. The act he complains of—the 1919 act— 
simply supplements the 1915 act by inserting those provisions which 
would make it operative. It provides a method for the governor to 
communicate this notice to the various divisions, and for the officers 
in the various divisions communicating it to the United States com¬ 
missioners, the method of appointing the election judges, and all the 
other prerequisites of election are provided for which were necessary 
in order to hold an election. 

Mr. Wickersham contends, after sanctioning the 3()-day notice, that 
we dispensed with the 60-day requirement, the organization of the 
precinct, the 30-day notice to be issued by the commissioner, and the 
30-day period prior to the election for the appointment of judges; 
but those provisions could not be complied with which the congres¬ 
sional act requires for general elections in case of an election called 
on 30 days’ notice by the governor, and the organic act says that the 
legislature can fix the time for special elections. There is no limita¬ 
tion on it. Which law will fall—the one that says the legislature can 
fix the time or the old law containing the prerequisites for a general 
election ? One of them must fall. 

Now, the same question was raised in Illinois in relation to regis¬ 
tration. It was held in People v. Ohio Grove (51 Ill., 191) that a 
provision requiring registration prior to an election was impliedly 
repealed as to special elections where the law governing the special 
election prescribed that it might be called on 10 days’ notice. The 
registration, according to that case, had to take place either prior to 
the 10 days or, if it was impractical to have it take place wffiere the 
election was called on 10 days’ notice, wffiile it was not expressly 
repealed, they held it did not apply to special elections, because it was 
inconsistent with the 10 days’ notice. 

Registration is a prerequisite of election, and so are these notices 
required by the congressional act; so that, when the Congress said 
that the legislature could absolutely fix the time for holding a special 
election, then impliedly any prior acts inconsistent with the absolute 
right to do that w^ere repealed as to the special election. 

Now^, all the organic act says in relation to that is perfectly con¬ 
sistent with that view, and consistent with no other view. Section 17 
of the organic act provides for a change in the time of election of a 
Delegate from August to November, and it says: 

That the time for holding an election in said Territory for a Delegate from 
Alaska to the House of Representatives to till a vacancy, whether such vacancy 
is caused by failure to elect at the time prescribed by law or by the death, resig¬ 
nation, or incapacity of the person elected, may he prescribed by an act passed 
by the Legislature of the Territory of Alaska: Provided further, That when 
such election is held- 

That is the proviso, “ that wdien it is held.” AVhen is an election 
held ? An election is held on election day. It is not held at any other 
time. The time for the election can be prescribed by the Legislature 
of Alaska, and “ Avhen such election is held it shall be governed in 
every respect by the laws passed by Congress governing such elec¬ 
tion.” Now^, is not that plain? There is no special election law^ in 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 315 

the t nited States that is controlled by the same prerequisites as 
general elections. Why would Congress tell us up in the Territory 
of Alaska to go through all the prerequisites of a general election at 
a special election? In Washington State, where Mr. Wickersham 
lived, they call a special election on 25 days’ notice. The only thing 
there is in the statute to prevent the prerequisites being changed, and 
the manner and the method of the canvass, is this section: 

Proiided, That when such election is hehl it shall he governed in every 
respect by the laws passed by Congress regarding such election. 

M e still have the same form of a ballot, the same hours for opening 
and closing the polls, the same duties of judges with reference to 
keeping the registration book, all the same provisions that are con¬ 
tained in the act of 1906 with respect to the conduct of election on 
election day. 

That is all that must be done under the acts of Congress, and that 
is all that this organic act says has to be done. The canvass of the 
vote is not done on election day. The election is closed when the 
polls close. When the polls close the man who has received the most 
votes at that time is the man who is elected. Then they proceed to 
canvass the returns. 

Mr. Elliott. What power fixed the date for holding this special 
election ? 

Mr. Grigsby. The governor, by authority of the legislature. 

Mr. Elliott. Under the terms of the special act? 

Mr Grigsby. Of the legislature. 

Mr. Elliott. That is confined to the legislature ? 

Mr. Grigsby. Yes, sir; it was, by the authority of Congress. 

Now, as to the canvass in this election, all the canvassing officers 
went ahead and canvassed the vote; that is, the election officers at the 
various precincts, the same as under the general election laws, but 
when it came to the transmission of the returns to the governor we 
provided that should be done by telegraph. That is not the conduct 
of the election on election day, and that is immaterial. 

I have cited McCrary in my brief to the effect that whether the 
returns get in or whetlier they do not get in at all, is immaterial. 
That special election was legall}^ called, and if I was legally elected 
on election day, and that is established to this committee, it does 
not make any difference what the canvassing board did, or whether 
thev did anything or not. 

ilr. Chindblom. That would be so, would it not, without reference 
to the question whether the law, the previous law, for the canvassing 
of the returns of the election applied or not ? 

Mr. Grigsby. Absolutely; and that is the reason I said it was im¬ 
material. 

Mr. Chindblom. If your proposition is true, it do^s not make any 
difference whether there has been a canvass or a return or proclama¬ 
tion or anything of that sort at the time when you get your certificate 
of election, if it subsequently transpires that you were elected ? 

Mr. Griggsby. If it subsequently transpires that I was elected. 

Mr. Chindblom. Then all those other failures or irregularities 
are cured. Then, I take it, it does not matter for the purpose of 
this case whether the provisions with reference to canvassing the 
returns subsequent to the election apply to a special election or not ? 


316 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

Mr. Grigsby. It would not make any dili'erence, provided that 
proof is olfered of my election, and the proof offered, in the first 
place, is the certificate of election. There is where the question 
comes in, whether any more proof is necessary. 

I take it the organic act does not prevent the legislature from chang¬ 
ing the method of transmitting the returns. That does not pertain 
to the conduct of tne election on election day, and I contend that 
the organic act which extends the laws of Congress to the election, 
when it says that when such election is held it shall be governed 
by the laws of Congress, it refers to the conduct of the election on 
election day. 

Mr. Chixublom. I am wondering whether you are right about 
your interpretation of the meaning of the words “ AVhen such elec¬ 
tion is held.'- There is a proviso first that the time for holding an 
election to fill a vacancy shall be prescribed by the act of the legis¬ 
lature, and then the goes on and says, ‘‘ Provided further, that when 
such election is held.” Does not that mean if the election is held, 
when such election is held, when such special election occurs, that 
then, in all other respects, the election shall be governed by the laws 
passed by Congress governing elections? 

Mr. Grigsby. Yes; I understand that is the opposite view of it; 
but I think the fair construction of the language is that the legis¬ 
lature has the absolute power to fix the time for holding this election ; 
and the legislature, therefore, could pass an act and say that a 
special election shall occur, as a matter of law, 20 days after a vacancy 
is proclaimed by the governor—or 15 days. There is no limitation 
on their power to fix the time for holding a special election. 

Supposing they did pass such an act, and the election is so held, then 
every prerequisite as to notice and division of precincts required by 
the congressional act with respect to general elections is inconsistent 
with that 2()-day period of fixing the time. 

Mr. Chindblom. But are the provisions with reference to canvass¬ 
ing the votes inconsistent ? 

Mr. Grigsby. You are confining your remarks to the subse¬ 
quent— 

Mr. Chindblom. Yes. 

Mr. Grigsby. Well, as to the subsequent requirements of the stat¬ 
ute, it rests simply on the ground that a fair construction of that 
proviso is that it refers to the election when held—the conduct of it 
on election day—and does not extend beyond that. That is the lan¬ 
guage. If they meant “ in case of such special election,” they should 
have said so. They say, “ when such election is held ”; that is, when 
it is called; when a special election is called, it shall be called at the 
time fixed by the legislature, and when it is held it shall be governed 
by the laws of. Congress with respect to general elections. I think 
that left the canvassing board or the legislature free to change or 
amend the legislation of Congress; or, rather, pass new legislation 
with reference to the transmission of the returns, because the same 
reasons why a different procedure should be adopted with respect 
to special election than with respect to general elections apply both 
to the prerequisites and to the acts which must be done afterwards. 

The special election is an emergency election designed to fill a 
vacancy. It is in evidence in this case that it takes four or five 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 317 


months to get your returns in under the general election laws. A gen¬ 
eral election is held on November 5, and the man who is elected does 
not have to go into office until the following March. A special elec¬ 
tion is called to fill a vacancy that exists at the time. Therefore the 
time for holding it may be shortened and the notice can be shortened, 
and necessarily the construction of the statute would follow the 
necessities of such an occasion, and if to follow the general provisions 
with regard to general elections would result in not getting the 
vacanc}^ filled, all that militates against the idea that such after- 
requisites apply to special elections. 

Mr. Chindblom. Except the fact that Congress may fix the condi¬ 
tions under which special elections may be held, as well as the condi¬ 
tions under which a general election may be held, and your argument 
as to any inconvenience or injustice falls when you consider the 
proposition that Congress could even dispense entirely with the hold¬ 
ing of an election. 

Mr. Grigsby. When the language is plain and ivhen there is room 
for tAvo constructions you can take the construction which Avould be 
consistent Avith the vacancy being filled, rather than taking the one 
which Avould be consistent Avith the term having expired, or the 
session having adjourned before you could get the elected Member 
in. You take the construction consistent Avith the purpose of calling 
a special election, rather than one inconsistent Avith it; Avhereas if 
Congress said right out that the canvass must be the same as in regu¬ 
lar elections, that Avould settle it; but here I contend that this lan¬ 
guage refers only to the procedure on election day. 

Mr. Chindblom. Well, is the canvass of the result and the publica¬ 
tion of the result, the proclamation of the result, a part of the elec¬ 
tion? 

Mr. (trtgsby. No; because it can be dispensed Avith and still the 
election be valid and sufficient to seat the candidate. 

The question is Avho was elected Avhen the polls closed. If a pre¬ 
cinct decisiA e of the election did not send any returns in at all, and 
they never Avere canvassed, you could come down here before a 
committee of Congress, and if you proved you got the A-qtes, you 
would be seated. The election ends on election day. Anything after 
that is a method prescribed by statute for ascertaining the result of 
the election Avhich has taken place. 

Mr. Chindblom. But suppose John Jones received a certificate 
of his election and came down and presented it to Congress, and then 
Avhen the canvass had been completed and the returns all made and 
tabulated, the canvassing board should find that Samuel Smith was 
elected, then Avhat position Avould Samuel Smith and John Jones be 
in respectiA^ely ? 

Mr. (trigsby. You mean if John Jones came doAvn here and asked 
for a seat in Congress Avith nothing to shoAv for it ? 

Mr. Chindblom. No; he Avould get the certificate upon such gen¬ 
eral information as existed immediately folloAving the special elec¬ 
tion, but Avhen the canvass Avas subsequently completed—and I sup¬ 
pose there Avould be a completion of the canvass some time? 

Mr. Grigsby. Yes. 

Mr. Chindblom. When the canvass Avas subsequently completed, 
it was found that Smith was elected? 


318 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Mr. Hudspeth. Then it would be up to Congress to unseat Mr. 
John Jones, and to seat the other gentleman. 

Mr. Grigsby. It would be up to Congress to find out who was 
elected. 

Mr. Chindblom. Then you have a law trained so that it very often 
results in confusion and in the possibility of two men claiming the 
election? 

Mr. Hudspeth. That is a condition we have right here before us 
to-day. 

Mr. Chixdbeom. No; this is not by reason of the enactment of the 
law. • 

Mr. Elliott. I have found out that a certificate of election does 
not amount to anything if not backed up by the votes. I have found 
that out to my sorrow. 

Mr. Hudspeth. It has to be backed up by the votes. 

Mr. Grigsby. Well, this certificate is issued on telegraphic re¬ 
turns, and the law is such that the certificate can not be issued until 
a sufficient return is in, until the missing returns, if all v*ast for the 
other candidate, as evidenced by the previous election, are not enough 
to change the result. If that law is followed by the convassing 
board, they could not make a mistake in issuing the certificate. 

Mr. Chindblom. Which law is that? 

Mr. Grigsby. That is the Territorial law. 

Mr. Chindblom. That is the Territorial law ? 

Mr. Grigsby. We are talkipg about whether the situation you men¬ 
tioned could militate against this construction. 

Mr. Chindblom. Yes. 

Mr. Grigsby. If it does, it is the fault of Congress for passing such 
an act. If they confine their act of 1906 and the operation thereof 
to the conduct of election on election day and leave it to the legisla¬ 
ture to prescribe the method of canvass and the legislature passes an 
act which might result in that situation, it does not militate against 
that construction. You can not assume the legislature will pass a 
defective act as to canvassing the returns, even though Congress 
gives them authority to do so. You are simply finding fault with 
this act that it passed. Suppose they passed a perfect act, one by 
which by no possibility could there be a certificate issued to two can¬ 
didates, then you go back and you read the statutes and your con¬ 
struction of it is not changed by the kind of act they passed. 

Mr. Chindblom. But in an ordinary election contest, presumably, 
when a certificate of election is issued, anyone else claiming the elec¬ 
tion than the one who got the certificate brings the contest. In the 
case I suggested as possible, while an election certificate had been 
issued to the first man and he appeared on the face of the first re¬ 
turns to have been elected, would it not be the duty of the canvassing 
board afterwards, when all the returns were in, and all the votes were 
tabulated, to issue an election certificate to the other man ? 

Mr. Hudspeth. I take it it would be the duty of the authority to 
ascertain before it ever issued the first certificate that the man had 
been elected. 

Mr. Grigsby. There was such a case in Wisconsin. I recall a case 
where two certificates of election were issued under the State law. I 
do not think that the possibility of what kind of an act the legisla- 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 319 


tiire might pass in regard to telegraphic returns affects the construc¬ 
tion of the organic act. But supposing you hold that Congress in¬ 
tended that the legislature should have the right to prescribe the 
manner and method of the canvass, and then they passed a defective 
act or one that might result in one, two or more certificates ? 

Mr. Chindblom. If it was clear that they had authority, then, of 
course, the question would not arise, but wliere the construction of 
the statute is in doubt, it is a rule of construction, as I recall it, 
to take that construction which has the kss absurdity, or which will 
not create a confusing situation. 

Mr. (tkigsby. Well, I can not concei^ e how you can construe this 
statute, and what poAver it confers on the legislature, by what any 
legislature might do. Suppose they Avere given the express power 
to amend the manner and method of canvass, and then Avent ahead 
and j:)assed a ridiculous laAv that might result in some absurd situa¬ 
tions, it Avould not afiect the A^alidity of their act. If they are giA en 
the implied poAver to do it, Avhat they might pass does not affect 
the interpretation and construction of this act, and it is not to be 
presumed that that situation is going to occur. They are simply 
taking the telegraphic reports of the clerks of tlie court, not of the 
precinct officers, the clerks of the court of the various divisions, 
Avhich are the certified copies of the certificates of election of the 
various precincts AAdiich are filed in his office. That is Avhat he tele¬ 
graphs in. That is the safest method. After the duplicate certifi¬ 
cates go to the clerk of the court, they are telegraphed in by him in 
his official capacity, and then an election certificate is issued on that. 
It is almost impossible that a situation could arise where the mail 
returns coming in afterwards could change the result. 

Mr. Chindblom. Is there a subsequent canvass? 

Mr. Grigsby. Under the law, there is none provided for. 

Mr. Chindblom. I understood you to say that these telegraphic 
and telephonic returns are merely preliminary, and that subsequent 
to them there is a canvass made. 

Mr. Grigsby. No; the act on the subject of returns, that is the 
special election act, I have not read for so long that I forget rhe 
language, but I had better read that to you. 

Mr. Elliott. It may be good all right, but I never saw anything 
like it before. 

Mr. Chindblom. I can see that the legislature might have full 
authority itself to substitute the sending of returns by telegraph 
and telephone for the sending of returns on typeAvritten or pen- 
written sheets of paper; they might have the right to do that, but 
there would be only one canvass, and that canvass would be based 
altogether upon the^telegraphic and telephonic returns. There would 
not be any subsequent canvass which would make it possible for a 
second certificate to issue upon a second canvass. 

Mr. Grigsby. I am probably in fault in not calling attention to 
the statute, and to the fact that there is no possibility of a second 
canvass or a second certificate. The canvass does not have to be on 
telegraphic returns. Here is the law [reading]: 

The election Avhen held shall be governed by the laws of Congress regulating 
general elections in the Territory of Alaska, except as otherwise provided by 

this act— 


320 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Now, that “otherwise provided” takes in woman suffrage, which 
was by act of the legislature, under authority of the organic act— 

Provided, That in canvassing the returns the canvassing board may, in their 
discretion, accept telegrapliic returns from the clerk of the court of each divi¬ 
sion, and that a certificate of election may issue prior to the receipt of the re¬ 
turns from all the election precincts, where it is apparent that the votes cast 
in the missing precincts will not change the result. 

Mr. O’Connor. They guess at it ? 

Mr. Grigsby. No; it has to be apparent. 

But here is another proposition, that these telegraphic returns come 
from the clerk of the court of each division. If you wait for the 
actual returns to come in, you have got to wait from four to five 
months, according to the evidence in this case. In my case they 
waited until at least the total vote cast in 1916 in missing precincts 
was less than my plurality. Here I carried, with three or four excep¬ 
tions, practically every precinct in Alaska that held an election. They 
waited until the total vote in the missing precincts which had been 
cast two years before was less than my plurality until they knew that 
the vote would not change the result, if all cast for my opponent. 
Of course, if they had that authority, it does not make any difference, 
as you say. The wisdom of the act can not be questioned, but the 
section means that having once canvassed and issued a certificate, they 
had no authority to issue another certificate to another man. They 
can take the telegraphic returns, or they can take the actual returns 
or the telephonic returns, but whatever they do take, that is the can¬ 
vass, under his section, so that a situation could not exist that you 
suggested. 

I think, unless there are some questions, gentlemen, I have nothing 
further to say. I have gone into this quite fully in my brief, and will 
leave the case with you. 

(Whereupon the committee adjourned until Tuesday, April 6, 
1920, at 2 o’clock p. m.) 


C()3iPUTTEE ON Elections No. 6, 

House of Representatives, 
Washington, I). 6'., Tuesday, April 6, 1920. 

The committee, at 2 o’clock p. m. this day, met. A quorum was 
present, Hon. Cassius C. Dowell (chairman) presiding. 

Mr. Grigsby. Mr. Chairman, I Avish to Avithdraw the objection I 
made yesterday to the ballots and records which are in the hands of 
the Clerk of the House and Avhich purport to be the original ballots 
and records of the NoA^ember 5, 1918, election for Delegate to Con¬ 
gress from the Territory of Alaska. 

The Chairman. Mr. AVickersham, you may proceed. 

CLOSING ARGUMENT OF MR. JAMES AVICKERSHAM, CONTESTANT. 

Mr. AAyckersham. Mr. Chairman, I am going to try to confine my¬ 
self entirely to answering some of the points made by Mr. Grigsby 
in his argument. I have no additional evidence that I Avant to bring 
before the committee, so that I am not going to try to testify any 
further than one does sometimes Avithout thinking, but I am going to 



WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 321 


try ^ confine myself entirely to answering the argument made by 
Mr. Grigsby, so that the committee can get as many of my ideas about 
his objections and what he said as possible. 

1 irst, I want to call the attention of the committee to one objec¬ 
tion that Mr. Grigsby makes, and has continually made, that much 
of my testimony is not properly before this committee, because it 
was taken prior to the passage of resolution No. 105. There is some 
testimony in the record which I put in there of an effort to get the 
testimony of these soldiers at Valdez on May 14, prior to the passage 
of that resolution of July 28. 

The Chairman. None of the record that you have here, as I under¬ 
stand it, was taken before the passage of that resolution ? 

Mr. M iCKERSHAM. Except this, that all of that was introduced. 
The document which was printed containing all of that ex parte 
matter was introduced in this record, and some of it was introduced 
specially in the record, especially that portion. 

The Chairman. Was that printed? 

Mr. Wickersham. Yes; especially that portion which related to 
the effort which we made to take the depositions of these soldiers at 
Valdez on May 14. 

Mr. Chindblom. Was objection made to that? 

Mr. Wickersham. To its introduction? 

Mr. Chindblom, To its introduction. 

Mr. Wickersham. I think not. 

The Chairman. Let me get you clearly. Are you relying- 

Mr, Wickersham. I will state what I am relying on. Mr. 
Grigsby declares that my notice of contest of May 3, 1919, was pre¬ 
mature and illegal, and that my efforts to take the testimony at 
Valdez on the notice of appearance of Mr. Diamond, who has since 
represented him all the time, was without authority of law, but that 
notice of contest of May 3, 1919, was received by the Clerk of the 
House on May 16, and transmitted to the House on June 2, and by 
the House ordered to be referred to the Committee on Elections 
No. 3, on that day, and it is printed as House Document No. 74. 
That document is my notice of contest. It is the notice of contest 
upon which the case is being tried. It Avas approved and rendered 
valid in every respect by resolution No. 105, and it is upon that that 
we are trying this case. 

It is true that subsequently I serA^ed an additional notice upon Mr. 
Grigsby so as to bring his election of June 3 into question here, and 
Avith that I serA^ed upon him a copy of this House Document No. 74, 
so that in both aspects that matter is the basis of this investigation, 
and it is made valid in eA^ery respect by resolution No. 105, and also 
by the personal service upon Mr. Grigsby, and there is no objection 
made, of course, to trying the case as broadly as it is set forth in 
Document No. 74, and in the special notice which I served upon him 
at a subsequent date. 

The Chairman. But upon testimony taken since the passage of 
the resolution? 

Mr. Wickersham. Yes; but in respect to that A^ery matter, on May 
14 I undertook to take these depositions of the soldiers at Valdez, 
and that eAudence was introduced in the record, and is in the record 
very fully, so I simply call that to the attention of the committee, be- 

181744—20-21 



322 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


cause I think the whole matter is made valid and legal by the paspige 
of resolution No. 105, and all that matter is before the committee 
fairly. 

Now, Mr. Chairman, this is not a prosecution for crime. It is not 
a case where a man must be proven to be guilty beyond a reasonable 
doubt before you can find him guilty of a crirne. We are here try¬ 
ing a civil suit. We are here trying a civil suit under the ordinary 
lules of evidence relating to a civil suit, and having had all this very 
full notice, and having brought this evidence before the committee 
in a proper way subsequent to resolution 105, it seems to rne that 
there can be no question but what the committee is justified in tak¬ 
ing it into consideration. 

Mr. Grigsby has said that he did not stand upon the affidavit of 
Odell, the affidavit which he put in his brief, and it is not in the 
record in any other place except in his brief. Well, I think he is 
right about that. I think those affidavits that he put in his brief 
ought not to have been there. 

Mr. Grigsby. I did not say I did not stand on it, Mr. AVickersham. 

Mr. AVickersham. Then I misunderstood you. Then he does stand 
on that. Now, all that evidence in his brief was not taken upon any 
notice to me. I had no notice of it at all, and knew nothing of it 
until I discovered it, first, that part that he read here before the com¬ 
mittee, and second in his brief. It is not in the record anywhere. 
You may search the record and the depositions fully, and you will 
not find anything about it in that record anywhere. 

I have made some points, and been very careful to try to confine 
myself to the very matters of interest presented by Mr. Grigsby. 
First, he undertook to convince this committee with respect to the 
power of the legislature, stating that the legislature of Alaska had 
authority to alter, amend, modify, and repeal a very wide range of 
laws in force in Alaska, and he did not put any block in the -wheels 
anywhere, and might mislead this committee into thinking that the 
legislature had somewhere authority given to it by the act of Con¬ 
gress to even repeal the election laws passed by Cdngress for holding 
elections in the territory of Alaska. 

I want to call attention to that for a moment. In the act of August 
24, 1912, found at page 512, 37 Stats., is this language which is re¬ 
ferred to. In section 3 of that act it is provided: 

That the Constitution of the United States, and all the laws thereof which 
are not locally inapplicable, shall have the same force and effect within the 
said Territory as elsewhere in the United States; that all the laws of the United 
States heretofore passed estahlishiiif; the executive and judicial departments in 
Alaska shall continue in full force and effect until amended or repealed by act 
of Congress. 

So that with respect to the establishment of the executive and 
judicial bodies for Alaska, the legislature, of course, has no authority, 
because that specifically excludes them. Then it goes on to provide: 

That except as herein provided, all laws now in force in Alaska shall continue 
in full force and effect until altered, amended, or repealed by Congress or by 
the legislature. 

And Mr. Grigsby made a very wild argument about that provision, 
and I fear it may have mislead some of the members of the commit¬ 
tee. I drew this bill myself, and if there were any amendments made 
in it at any time, and there were some, I was so conversant wdth all 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 323 

those amendments that I know what each and every one of them 
meant, and I have a very full information about whv those amend¬ 
ments were put in. 

Now, it is provided: 

Except ns herein provided, nil ln^Ys now in force in Alnskn slinll continne in 
fnll force nnd effecd until nltered, amended, or repealed by Congress or by the 
legislature: Provulcd, That the authority herein granted to the legislature to 
alter, amend, modify, and repeal laws in force in Alaska shall not extend to the 
cnstoms, internal revenue, i)Ostal, or other general laws of the United States, 
or to the game, ttsh, and fur-seal laws and laws relating to fnr-bearing animals 
of the Unitetl States applicable to Alaska. 

And then it goes on and provides for some other special laws 
which the legislature shall not have any authority to alter, amend, 
modify, or repeal. Now, section 5 of this act provides: 

That the first election for members of the Legislature of Alaska shall be held 
on the Tuesday next after the first Monday in November, 1912, and all subse¬ 
quent elections for the election of such members sliall be held on the Tuesday 
next after the first Monday in November biennially thereafter; that the qualifi¬ 
cations of electors, the regulations governing the creation of voting precincts, 
the appointment and qualifications of election officers, the supervision of elec¬ 
tions, the giving of notices thereof, the forms of ballots, the register of votes, 
the challenging of voters, and the returns and the canvass of the returns of the 
result of all such elections for members of the Legislature shall be the same as 
those prescribed in the act of Congress entitled, “An act providing for the elec¬ 
tion of a Delegate to the House of Representatives from the Territory of 
Alaska,” approved May 7, 1906, and all the provisions of said act which are 
applicable are extended to said elections for members of the legislature, and 
shall govern the same, and the canvassing board created by said act shall 
canvass the returns of such elections and issue certificates of election to each 
member elected to the said legislature; and all the penal provisions contained 
in section 15 of the said act shall apply to elections for members of the legis¬ 
lature as fully as they now apply to elections for Delegate from Alaska to the 
House of Representatives. 

The purpose of that was to provide, as it does specifically provide, 
that all elections for members of the Territorial Legislature in Alaska 
shall be held under the provisions of the act of May 7, 1906, which 
shall govern the same, so that there is a cast iron, mandatory rule laid 
down by Congress that the election for members of the legislature 
shall be governed by the act of May 7, 1906, and it is perfectly clear 
that the Territorial Legislature has no authority in any way to change 
any of the provisions of the act of 1906 relating to elections for mem¬ 
bers of the legislature. But Mr. Grigsby rather left the impression 
that somewhere in this first clause there is a loophole giving the 
Legislature of Alaska authority to change the election laws relating 
to the election of Delegate to Congress, and it did that in this special 
act, and changed the law of Congress. He gets up here and makes 
a long argument that they had the right to change all the laws relat¬ 
ing to the holding of that election except those that apply on the 
election day itself. 

Section 17 of this act I do not think is open to any construction, 
because it was intended by section 5 to prevent the Legislature of 
Alaska from having any power to alter, amend, modify, or repeal 
the election laws of Alaska relating to the election of the legislature, 
and section 17 Avas intended by Congress—and you will find it if you 
will get the report of the committee which reported this bill—to 
provide that those hiAvs relating to the election of Delegate should 
not be changed by the Territorial Legislature. 


324 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


Section 17 provides: 

That after the year 1912, the election for Delegate from the Territory of 
Alaska, provided by “An act providing for the election of a Delegate to the 
House of Representatives from the Territory of Alaska,” approved May 7, 
1906, shall he held on the Tuesday next after the lirst Monday in November 
in the year 1914, and every second year thereafter on the said Tuesday next 
after the first Monday in November, and all of the provisions of the afore¬ 
said act shall continue to be in full force and effect and shall apply to the 
said election in every resi>ect as is now proviiled for the election to be held 
in the month of August therein. 

Xow, if any member of this committee can find any loophope 
there which gives the Territorial legislature in Alaska any authority 
to change those laws, then you have got to forcibly disrupt the lan¬ 
guage of the act passed by Congress. 

Then the law goes on as follows: 

ProvUled, That the time for holding an election in said Territory for Dele¬ 
gate in Alaska to the House of Representatives to till a vacancy, whether 
such vacancy is caused by failure to elect at the time i)rescribed by law, or 
by the death, resignation, or incapacity of a person elected, may be prescribed 
by an act passed by the Legislature of the Territory of Alaska: Provided 
further, That when such election is held it shall be governed in every respect 
by the laws passed by Congress governing such election. 

Those two clauses, it seems to me, are so clear and so positive 
that it was intended by Congress and bv the committee that re¬ 
ported this bill to take away from the Territorial legislature any 
power to change the election laws of the Territory of Alaska. 

Mr. Chairman, if they have authority to alter, amend, or modify 
these laws in any respect except by merely fixing the time when 
they may hold a special election: they may repeal the laws, 
because the act then would have turned over the Territorial 
legislature in Alaska the authority to repeal the laws and take away 
from the-^people of Alaska their right to elect a Delegate to Congress. 
Of course, that was not intended, and it was not intended by the 
framers of this act and the committee to give that legislative au¬ 
thority any power over these election laws. If you gave it that 
authority, they could not only destroy the Territorial Legislature of 
Alaska but they could destroy the office of Delegate from Alaska, and 
prevent one from being elected. 

Mr. Grigsby. How about the legislatures of the other Territories? 

Mr. AYickersham. That has not anything to do with it. There 
are no two Territories in the United States that ever had the same 
authority. I repeat that there were no two Territorial legislatures 
in the United States that ever had the same authority. 

Mr. Chindblom. Did the other Territorial legislatures have that 
authority; do you know? 

Mr. AYickersham. No. 

Mr. Chindblom. To change and amend a laAv with reference to 
the election of delegates to Congress? 

Mr. WiCKERSHAM. No. I looked that up, and I annotated all those 
laws very fully for the committee. I made a very full and complete 
annotation of all the laws theretofore passed by Congress relating to 
the local government and the organization of the legislatures and the 
election of delegates, etc., and I ascertained that no such a law had 
ever been passed, so that there can not be any question about it. Na 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 325 

Territorial legislature ever had any authority over the election of 
delegates in a Territory. They did have some authority, and there 
was a well defined purpose in putting that clause in section 3 of 
this act, giving the legislature some authority to repeal the acts of 
Congress, and for this reason, that Alaska was created a Territory 
by the act of 1884, but at that time it had no legislature. The act 
of 1884 pro^dded for the appointment of a governor and the ap¬ 
pointment of judges, in other words for the executive and judicial 
departments, and the act of 1884 contained a number of laws relating 
especially to Alaska in a local way, and it did more. 

In a section of the act of 1884 it especially extended all the laws 
of the State of Oregon to Alaska. That is to say, all of the laws 
relating to civil procedure and criminal procedure were extended 
by the act of 1884 to Alaska, so that while we were a territory, but 
before we had a Territorial legislature, we had a complete system 
of laws borrowed from the State of Oregon and bodily extended by 
several sections of the act of 1884 to Alaska. 

Xovv, that is not unusual. When Oregon was first created a 
territory about 1848 the act of Congress creating Oregon Territory 
extended the laws of Iowa bodily, so that when Oregon was created 
a lerritory it began its existence with a code of hnvs provided by 
borrowing the codes of Iowa, and extending them to Oregon, as in 
the act of 1884 the laws of Oregon were borrowed and extended to 
Alaska. 

Now, that condition existed up until 1899, and in 1899 Congress 
passed what we call the criminal code of Alaska. Mind you, we did 
not have any legislature in 1899, but Congress passed a very exten¬ 
sive criminal code and a code of criminal procedure for the Territory 
of Alaska. We had our courts established b}^ the act of 1884, so that 
by the act of March 3, 1899—and jmu will find it in the Compiled 
Laws of Alaska, 1913—a criminal code and a code of criminal pro¬ 
cedure were passed by Congress especially applicable to Alaska. 

We did not then have any legislative body, but we did have a ter¬ 
ritorial form of government and an executive department and a 
judicial department and a court of criminal laws and a code of 
criminal procedure passed by Congress. 

On June 6, 1900, Congress passed another act establishing a civil 
code and a code of civil procedure, which are contained in the Com¬ 
piled Laws of Alaska, 1913, before you. By the act of eJiine 6, 1900, 
then, Ave had a civil code and a code of civil procedure extended to 
Alaska, so that after June 6, 1900, we had a governor and a com¬ 
plete executive department, Ave had a judicial department, and Ave 
had four judges, four judicial diAusions, and four courts, and all the 
paraphernalia of the courts, but no legislature, and it was not until 
1912 that Ave had a legislature, although during all these years we 
had these codes of laAvs passed by Congress, and Avhile I can not take 
it up myself in the brief time that you haA^e given me to ansAver, a 
careful examination of this act and a careful examination of those 
laAA^s Avill disclose—and Mr. Grigsby knows it, and eA^erybody else 
knoAVS it Avho is conA^ersant Avith the situation in Alaska—that the 
purpose of section 3 there Avas to giA^e the Territorial Legislature 
of Alaska, the authority to alter, amend, modify, and repeal the 
Oregon laws which were extended to us by the act of 1884, the 


326 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

criminal code as extended to the Territory of Alaska by the act of 

1899, and the civil code as extended to Alaska by the act of June 6, 

1900. 

I was appointed United States district judge, or district judge in 
Alaska on June 6, 1900, and went to Alaska and have been there ever 
since. I haA^e practiced in the courts there, and I am thoroughly 
conversant Avith the situation, and so is Mr. Grigsby, and he knoAVS, 
and I knoAv, and you gentlemen Avill know^ if you examine this law, 
that the only purpose in putting that provision in there, and the only 
effect that it has is to give the Territory of Alaska authority to 
alter, amend, modify, and repeal the Oregon laAvs, the code of crimi¬ 
nal procedure and the code of civil procedure, and a feAv other small 
acts passed by Congress giving the courts in iVlaska certain other 
local jurisdiction. 

Mr. O'Connor. Did you say that jmu Avrote that Congressional 
Act? 

Mr. WicKERSHAM. The act of 1912; yes. 

Mr. O’Connor. When Avas the Alaska legislatiA’e act passed? 

Mr. WiCKERSHAM. That Avas the act of August 24, 1912, creating 
the Legislature of Alaska. 

Mr. O’Connor. 1912? 

Mr. WiCKERSHAM. Yes. 

Mr. O’Connor. AYas that the act you Avrote? 

Mr. WiCKERSHAM. That aa as the act I wrote; yes. 

Mr. O’Connor. Is that the act governing the election of 1916? 

Mr. WiCKERSHAM. Xo; the act goA^erning the election is the act of 
1906. The election law of 1906 provided for the election of a Dele¬ 
gate to Congress, which I did not write. 

Mr. O’Connor. But you Avrote the territorial act? 

Mr. WiCKERSHAM. I wrotc the territorial laAv. 

Mr. O’Connor. Was the election of 1916 conducted under this 
territorial act Avhich you wrote? 

Mr. MTckersham. Under that, and under the act of May 7, 1906; 
A^es. The act of 1912 merely extending the act of 1906 to the election 
of Territorial legislators, and also changed the date for holding the 
election for delegate from Alaska, and providing that when the elec¬ 
tion is held it shall be held under the act of 1906 specifically. There 
is not any question about it at all, and it is only necessary for you 
gentlemen to read that act to understand it, if you will, because Mr. 
Grigsby knoAvs it does just as I do. 

Mr. Grigsby also says that I am trying to mislead the committee, 
and it is not unusual for attorneys who are ar^iing a case Avhere 
there is a good deal of interest, as there is in this case between him 
and me both, to present his side just as forcefully as he can, and at 
times I think rather too forcefully. 

I am only going to present this one matter to you, because Mr. 
Grigsby has mentioned it, and this matter, I think, is typical of all 
his other allegations that I am trying to mislead the committee. 
He made this point, that I have made an inaccurate statement in my 
brief at page 46, and I hope you Avill look at page 46 of my brief so 
that you Avill see exactly what this misstatement is. He went to great 
extremes to prove that I was misleading you. With respect to this 
Nushagak matter, he said that I said on pages 45 and 46 that French, 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 327 

the commissioner at Chog^inn^, failed and .refused to perform these 
jurisdictional acts in Xusha^ak, and that he did not appoint for the 
Xushagak voting precinct any officers there, and on the next pa^e he 
says that I say that these men at Nushagak were reenforced by a 
number of settlers formerly residing in Choggiung precinct, and 
he read the evidence of Xash at len^h to show you that there was 
not a word in the testimony of Xash about anybody being reenforced 
in Xushagak, and when I said in my brief, as I do, that these men at 
Xushagak woidd have cast a big vote because they were reenforced 
by people who had come over from Choggiung precinct that I was 
misleading the committee willfully; and he said you ought not to 
believe anything I said thereafter, because I had mislead you. 

If I did say, as I have said here, that these people at Xushagak 
were reenforced by a number of settlers formerly residing in Chog¬ 
giung precinct—and I did it out of a superabundance of enthusiasm 
in order to present my case to the best advantage—it would not be 
very material, because it is not a point in issue in this case; there 
is nothing in this case with respect to that particular matter. But 
T have tried to be very accurate in my statements in this brief, and 
I beg this committee to understand that I think this brief is accurate 
and is very full and very complete upon the few points that I have 
tried to present to you, and I offer it to you as accurate, and I was 
somewhat annoyed that Mr. Grigsby should pick out a little thing 
like that and try to convict me of inaccuracy upon an immaterial 
matter, and then extend it to material questions and say that because 
I w^as inaccurate in this one little thing therefore I was inaccurate 
generally and that you ought not to take too much stock in what 
I said. 

Xow, he read the testimony of Xash, and there was not a word 
in his evidence about any reenforcements from Xushagak. He did 
not read all of Mr. Xash’s testimony with understanding. I did 
read most of it- 

Mr. Grigsby. I read every word of it. 

Mr. WiCKERSHAM. I know you did, but not, as I said, with under- 
standiim. 

Mr. Grigsby. Of course. I might not be able to understand it. 

Mr. WiCKERSHAM. People may read a thing and still not read it 
with understanding. X^ow, I call your attention to page 80 of the 
record. 

Mr. Chindblom. My recollection is that he made more of a point 
out of the claim that there were no election officers appointed in 
Xushagak. 

Mr. WiCKERSHAM. Yes; and I am going to answer that. 

Mr. Chindblom. He made more than that out of the matter of 
reinforcements, as I recall it. 

Mr. WiCKERSHAM. There was quite a good deal on that. On page 
80 of this record is a list of names said by the AVitness Xash to be 
voters in the Xushagak precinct, and at the top of the right-hand 
column is the name of Louis Hauser and wife; and Mr. Xash wrote 
that list out in longhand, and the gentleman who acted as stenogra¬ 
pher or copyist got Louis Hanson’s name wrong, that is all, and in 
my list of witnesses I have got it stated correctly, and in the original 


328 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


which is before this committee, it is stated correctly. His name is 
Louis Hanson and wife. 

Mr. Grigsby. In the list you made? 

Mr. WiCKERSHAM. The list I made. 

Mr. Grigsby. For the use of the committee? 

Mr. WiCKERSHAM. For the use of the committee. I have it Louis 
Hanson. In the first column of the list is Blank Ostertrum and 
wife. In the original, which is before the committee, it is Adolph 
Osterhaus and wife, and Adolph Osterhaus and Louis Hanson are 
shown by the original record to be residents of Nushagak precinct at 
the time that Nash gave this testimony and on election day. 

Now, if you will take the record which Mr. Grigsby has read, and 
which I think to some extent is before this committee, on the elec¬ 
tion of 1916, you will find that Louis Hanson and Adolph Osterhaus 
were election officers in Ghoggiung precinct in 1916. They resided 
in Ghoggiung precinct in 1916, and they signed the official election 
returns for that year—in 1916. 

Now, you have before you the original returns from Ghoggiung 
of 1918, and you will not find Louis Hanson or Adolph Osterhaus 
in the record of the election returns of 1918, because they had in the 
meantime gone over to the other place, and Nash testified to it fully 
right here, so that, without taking any more time, I call your atten¬ 
tion to the fact that that was not an inaccurate statement, and although 
it proved to be an immaterial one, it was perfectly accurate. I know 
Louis Hanson and I know Osterhaus, ancl I have had a good deal of 
correspondence with them about this matter, and I undertook to get 
the depositions of those ]ieople at Nushagak through them, but the 
flu struck them just before my communication did, and Mr. Os- 
terhaus’s Avife died, and his children died, and many died in that 
community, and the result Avas that they paid no attention to my 
efforts, and I did not get their depositions. 

I can testify to that, of course, just fike Mr. Grigsby does A’^ery 
freijuently. It is not in the record, but these other matters are in the 
record, and they are before you, and they shoAv I Avas not inaccu¬ 
rate in making tliat statement I am just calling that matter up as 
an example of the other things Avliich iMr. Grigsby stated about 
my testimony in this case. He said he did not knoAv much about this 
case. He said he Avas here as delegate looking after things for 
Alaska, and the result Avas he had not giATii much attention to this 
case, and I can Avell believe it, because he omitted a great many things 
that he ought to have done, and he said a great many things in criti¬ 
cism of me AAdiich he does not knoAv anything about. If he knew 
about those things he Avould not do it. He is not trying particu¬ 
larly to mislead you, but he just simply does not know, that is all. 

^ Noav, I Avill take up one of the other cases. He says noAv that 
French did not appoint the election officers, or he says that I say 
that French did not appoint these officers in Nushagak, and I did 
say it at jiage 45 of my brief— 

but failed and refused to perform these .iurisdictional acts in Nushagak; that 
he i-eceiA-ed these blank official election books and records in .Tuly; that French 
Avas over in the Nusha.ijak preciiu't several times between that date and Novem¬ 
ber 5, 1918, election day. and as late as October 22, but did not appoint elec¬ 
tion ollicers or deliver any blank election supplies, etc., there, nor cause or 
permit it to be done. Finally, just before election day, French delivered the 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 329 


supplies to a rejjistered German alien and then they disai)peared. “ The 
supplies were never taken over.” 

He says Commissioner French is a Democrat, appointed hy the Democratic 
judge of the third <livision ; that he was a violent partisan opponent of con¬ 
testant, and engaged in electioneering for Mr. Sulzer. French was not only com¬ 
missioner in the Dillingham recording district, hut also ex officio probate judge, 
justice of the peace, recorder, and coroner, and also superintendent of tiie In¬ 
dian school maintained there hy the United States Hoard of Education, and 
the doctor for the Indians, undei" emi)loyment from the bureau, 

French appointed the election officers at Choggiung—J. C. Lowe, Charles 
Nelson, and a man named Ownhy, a jail guard—as judges of election, but did 
not appoint any for Nusbagak voting precinct, which he had created across 
the river. All these officials at Choggiung were supporting Mr. Sulzer. the 
Democratic candidate, with French, and were unfriendly to this contestant. 

I think the evidence on that matter is perfectly clear. 

Ur. (triosby. Read some of it that says he failed. 

Mr. AVickersiia^i. Mr. Grigsby declares that there is no evidence 
that French did not appoint the election officers. Xash testified to 
that, and yon will remember the testimony, because yon have heard 
it ((noted to you fully. Xash says there were no papers delivered 
over there: that there Avere no orders; there Avas nothing deliA^ered 
there by French upon Avhich these jfeople could hold the election. 
That is the only Avay they could get that information. The only 
Avay that authority could come to these ])eople in Xushagak Avould be 
by the orders—the official orders-—of French. And French, it ap¬ 
pears, Avas oA er there seA’^eral times in October, and as late as the 22d 
day of October, and did not leaA^e any (hfcuments of any kind to 
enable those jfeoph', to hold the election, and the point is this, that 
by reason of his failure to leaAX those documents there, by reason 
of his failure to deliA^er those documents, by reason of his failure 
to notify these ])eople by the deliA^ry of the documents, the other 
conclusion folloAvs, as a matter of laAv, not as a matter of fact, but as 
a matter of laAv. 

Section 5 of the act of May 7, 1906, proAudes for the order creating 
the precincts 60 days before the election. 

Mr. Grigsby. Excuse me, fludge, but Xash testified that they did 
ha AT notice of the election across the river in Xushagak. 

^Ir. AVtckersitam. But that order had to be made 60 days before 
the election. T have got the notice. The original notice is here. 

Section 5 of the act of May 7, 1906, providing for the election of a 
Delegate to the House of RepresentatiATS from the Territory of 
Alaska, section 369 of the compiled hiAvs of Alaska, provides as 
folloAA’s: 

Tliat all of tlu‘ territor.v in each i-econliiig district now existing or liereaftei 
created situate outside of an iiicorjjorated town shall, for the puri»<>ses of this 
act. constitute one election district; tliat in each year iii which a Delegate is 
to be elected the commissioner in each of said election districts shall, at least 
80 days before the date of said tii-st election, and at least 00 days before the date 
of each subsecpient election, issue an order and notice, signed by him an entered 
in his records in a book to be kept by 1dm for that purpose, in which said order 
and notice he shall— 

First. Divide his election district into such number of voting precincts as 
nniA', in his judgment, be necessar.v or convenient, detining the boundaries of 
each' i)recinct * * * : Proridcd, lioirever. That no such A’oting precinct shall 
be established with less than 30 (jualitied vtders resident therein; that the 
precincts established as aforesaid shall remain as permanent precincts for all 
subsequent elections, unless discontinued or changed by order of the commis¬ 
sioner of that district. 


330 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

And this must be done 60 days before the election. 

The CHAimiAN. Your claim is that that is mandatory? 

Mr. WiCKERSHAM. Absolutely. Let us concede that was done, be¬ 
cause that is the section that requires the giving of notice of the lay¬ 
ing out of the precincts, etc., and in the second paragraph he is re- 
(juired to give notice of said election, the second paragraph reading as 
follows: 

Give notice of said election, specifying in said notice, among other things, the 
date of such election, the honiidary of the voting precincts as established, the 
location of the polling place in the precinct, and the hours between which said 
polling places Mill be open. 

That was done, and those notices were posted 60 days before, and 
they are always posted 60 days before, if the law is complied with, 
and these people saw them: but there is another notice to be given 
30 days before the holding of tlie election, and that is the notice that 
was not given. 

The fourth paragraph of this section provides: 

That at least 30 days prior to the date of the holding of such election the com¬ 
missioner shall select, notify, and appoint from among the qualitied electors in 
eac hvoting precinct three .iudges of election for said precinct, not more than 
tvm of Mdiom shall be of the same political party. Said commissioner shall notify 
all <d said judges of election of their appointment as such, so that each and 
all of them shall receive said notice at least 10 days before the date of the 
election. 

Now, there is where he failed. He did not appoint them and did not 
select them; he did not notify them so that they would receive that 
notice at least 10 days before election, and there is where Nash’s tes¬ 
timony is complete in this case, because he testifies from his own 
knowledge and from the circumstances that those notices were not 
delivered. They had to be delivered in writing; there is no escape 
from that. So it is altogether inaccurate to say that I made a mis¬ 
take when I say that the evidence here shows clearly that these officers 
were not appointed in Nushagak. 

They had to be appointed by an order of this commissioner, and 
he had to notify each one of them in writing, and he did not do it. 
That is all there is to that. I say to this committee now that the evi¬ 
dence is full and complete and unanswerable in Nash’s testimony that 
no such notice was given, although Commissioner French was over 
there several times in the month of October and the election was 
held on November 5, and he absolutely declined, absolutely refrained, 
we will say, from doing it, because Nash says he was there as late as 
the 22d day of October, only a few days before the election, and that 
those notices were not given. 

Mr. Chindblom. You say there is affirmative evidence in the record 
that the notices to the election officials were not given ? 

Mr. WiCKERSHAM. Yes, sir; Nash testified! to that positively. 
Those were the papers that Nash was talking about all the time. 

Mr. Grigsby. AYhat was that last statement? 

Mr. WiCKERSHAM. I say those were the papers that Nash was talk¬ 
ing about; those were the documents which he did not deliver; those 
were the documents that were necessary to be delivered within the 30 
days, or within the 10 days preceding the election. They had to be 
delivered at least 10 days prior to the election. 

Mr. Chindblom. You think those notices were a part of the sup¬ 
plies? 


WICKEESHAM VS. SULZER (DECEASED) AND GRIGSBY. 331 
ICKERSHAM. YeS. 

Mr. (huGSBY. That came down on the Xome boat in July? 

The Chairman. As I understand you, Judge, you are contending 
that this is a mandatory statute, and that the commissioner did not 
comply with the law, and your claim is that certain voters in this 
precinct where the election Avas not held Avere not permitted to Amte? 

Mr. AVtckershaai. Yes, sir. 

The Chairman. Xoav, your contention is that in the other part of 
the division Avhere the election Avas called, by reason of the fact that 
the election aa as not called in this precinct, the entire election in that 
precinct is void ? 

Mr. Wickersham. The Avhole matter is Amid, because of the fraud 
on the part of the election officer in refusing to comply Avith the law in 
his jurisdiction. 

The Chatraian. V on are not contending that those avIio Avere de- 
jiriAmd of their votes in the precinct Avhere the election Avas not held 
should be counted for the ones that it is shoAvn in the evidence they 
intended to Amte for? 

^fr. IYickersham. VIr. Grigsby yesterday read a very persuasive 
argument along that line. 

The Chairaian. But I am trying to get your vieAv of these tAvo 
precincts. 

Mr. Wickershaai. Well, as I have said to you in my brief, and I 
refer all the time to my brief for my AueAv of the matter, because I 
Avas very careful in Avriting it, either the committee should alloAv me 
the Amtes of those people Avho Avere disfranchised, and Avho, the evi¬ 
dence shoAvs, Avould haAm voted for me, or you should throAv out the 
whole district in which this man perpetrated that fraud. 

The Chairaian. But there is a certain laAv on the subject, and what 
I think Ave AAmuld like to get at is your vieAv of the hnv, and Avhat Ave 
are required to do under the state of fact a^ou present. 

Mr. Wickershaai. I cited a large number of authorities to you to 
shoAv that AA herever in any precinct the officials refused to comply Avith 
the laAv the courts haAm uniformly held that the election in the Avhole 
district Avas Amid, and that AvouId apply particularly in the Forty- 
mile precinct, Avhere frauds Avere committed also. And Mr. Grigsby 
undertook yesterday to shoAv you that in the KlaAvok (Craig) pre¬ 
cinct, where 28 Indians, in 1916, were not permitted to vote, that they 
ought to have been alloAved to Amte and that because they Avere not 
alloAved to vote, although they did not offer their Amtes, and did not 
come to the polls and their names Avere not in the record anyAvhere, 
and they are only referred to as 28 Indians, they ought to haAm been 
counted in 1916 for Mr. Sulzer. 

Xoav, if that is the rule, and I think fairly that is Avhat Mr. Grigsby 
stated to you yesterday, then I ought to ha Am the votes that Mr. Xash 
says he knoAvs Avould haAm been cast for me, and they AAmuld haAm 
been cast for me Avithout any question, because I can testify to that 
matter myself. 

Mr. Chindbloai. Hoav Avere the notices to the election officials 
throughout Alaska generally sent to those officials by the commis¬ 
sioners in the recording districts ? 

Mr. Wickershaai. Sometimes by mail and sometimes personal de¬ 
livery, because the laAV proAudes that he shall select, notify, and ap- 
jmint the election officers, and then the next clause is that he shall 


332 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


notify all of the said judges of election. He has to select them, which 
is a judicial function. He does it by order invariably also. 

Mr. Chindblom. Is it his duty to prepare those notices himself? 

Mr. WiCKERSHAM. Yes. It is made his duty by the mandatory 
provision of that section. 

Mr. Chindblom. How does he get the ballots and blanks and 
registry books and jioll books? Are those prepared by himself, or 
are they sent to him ? 

Mr. IVtckersham. They are all sent to the commissioner in the 
district by the clerk of the court, and he distributes them himself 
in person, or by sending them by some carrier to these people, because 
he does it when he simply notifies the election officers; he sends them 
at that time, within the 10 days immediately preceding the election, 
that is, before those 10 days. 

He has 20 days there in which to do those things, and it is invari¬ 
ably done in that way, and that is the law, and it is a mandatory 
law, and if he does not do it, or violates it, he is subject to imprison¬ 
ment in the penitentiary by section 15 of this act. So that it is 
mandatory. Whenever a law makes a penal provision, whenever the 
law declares that if you do not do anything that it says you shall do, 
you shall go to the penitentiary for failing to do it, then it is 
mandatory. 

Mr. Grigsby. On the official ? 

Mr. WiCKERSHAM. Yes. 

Mr. Grigsby. Certainl^L 

Mr. WiCKERSHAM. That is the law. That is Avhat I am talking 
about. It is mandatory on the official. It Avas mandatory upon 
Commissioner French to do those acts, and he did not do them, 
although he Avas there as late as the 22d day of October, and did not 
do them. 

Mr. Chindblom. Where aa as the clerk of the court for the district 
in Avhich Xiishagak precinct is located? 

]Mr. WicKERSHAAi. He Avas at Valdez, fiAe or six hundred miles 
aAvay. 

Mr. Chindblom. AVould they have the same route by Avater as 
people at Xome ? 

Mr. Wickersha:m. Xo; different altogether. Hut they got the 
election blanks, etc., at Choggiung, they got them there in July, 
and the testimony Avas that they Avere sent very early. They did not 
send the blanks and the-ballots together, because the ballots are not 
made up until after the election blanks are forwarded, and you Avill 
find, if you look through the record of 1916, and this record of 1918, 
that the ballots did not reach the election officers at Choggiung or 
Xushagak either, but the other blanks did. 

IMr. Chindblom. What I haAe in mind is that Xash testifies that 
he thinks that these supplies came by the Xome boat in July? 

Mr. WiCKERSHAM. Yes. 

Mr. Chindblom. Would that be the same boat from Avhich the 
supplies AA ould come from the clerk of the court in that district ? 

Mr. WiCKERSHAM. Well, they might come by that, or they might 
come by mail around by Unahiska. There are tAvo or three routes 
by which they could come, but there is no question but what they 
reached there, because they AA^ere at Choggiung, and are before you 
now. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 333 

I want to call your attention to another matter, and that is 
this Hawaiian case. Before I do that, though, T want to say again 
that there are a lot of things of that kind in this case that Mr. 
(xrigsby criticizes me for, which are just as inaccurate as I have 
shown those two things to he, and he is mistaken about both of them. 
M hen h rench did not deliver the orders selecting and modifying 
these election officers, the conclusion follows that they were not 
notified, because that was the only way he could do it. That is the 
point I am making about it. AVe have shown he did not do it posi¬ 
tively and accurately. There is no testimony the other way: there 
is no question about it in the record. 

Xow, I want to call attention to this case in Hawaii, the matter of 
the ballots. In five or six precincts these Australian ballots that 
are provided for by the act of 1915 of the Territorial Legislature, 
were furnished to the election officers, and they were voted without 
tearing off the numbers at the top. Xow, the Hawaiian case, which 
has been read here, is directly in point on that question, but Mr. 
Grigsby says that is not mandatory. 

Mr. Grigsby. I did not say anything about mandatory. 

Mr. WiCKERSHAM. Well, I misunderstood you if you did not. 

Mr. Grigsby. I said it was not in point. 

Mr. WiCKERSHAM. In the argument that he made here and in his 
very nice little book of opinions which he gave to each one of you 
gentlemen- 

Mr. Grigsby. That is your brief. Do not call them my opinions. 

Mr. IViCKERSHAM. I am referring to the nice little book that you 
gave to each one of these gentlemen containing your opinions. You 
will find his opinion in the brief asserting that this election act of 
1915, passed by the Legislature of Alaska, is mandatory, and then 
in large type as well, on that page, he gives the reason why it is 
mandatory, and he declares most vociferously, in the loudest possible 
type, that the election law passed by the legislature in 1915 is man¬ 
datory in every provision. He can not go back on that. Xot only 
that, but Judge Jennings, in the case of Sulzer against the can¬ 
vassing board, which is here before you, went into that whole matter 
also and declared that the election law of 1915 was mandatory, and he 
went into it at great length, and he denounced everybody at Chog- 
giung and Xiishagak who did not do certain things, for the reason 
that they all knew, because this law was mandatory, that they had to 
do it, and because they did not do it in this precinct. Judge Jennings 
threw this precinct out, because that law had not been complied with 
when it was mandatory. 

If it was mandatory in 1916 and 1918, then it is mandatory in 1920. 
If it was mandatory in Mr. Grigsby’s opinions, which he has dis¬ 
tributed to you, gentlemen, it is mandatory in this case, and it is 
provided in that law that if certain things are not done, these men 
shall be punished as provided in the law, and having this peniten¬ 
tiary offense attached to it makes it more mandatory according to 

their theory. . rr^i tt •• 

Xow, it was not done in these precincts. 1 he Hawaiian case fits 
it exactly, except it was not mandatory in Hawaii. That is the only 
difference. In the Hawaiian decision, if you will read it carefully, 
you will find it was not mandatory there, and yet the committee and 


334 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


this House held that a violation of that law invalidated those bal¬ 
lots, and you threw them all out, when the law was not mandatory. 
If that was the law then, it ought to be the law now, and it is the law 
now if it was the law then. 

Mr. Grigsby will come back at me and say, “ Well, you said that 
law was not valid.” The Hawaiian case says that the law was not 
valid; that they were proceeding there by mutual consent among 
themselves, and just assumed the territorial law had some force and 
effect, but the committee said that because they had assumed that 
much they were bound by it. AVhen Mr. Grigsby says this law is 
valid and mandatory, he is bound by it, and if you pay any attention 
to the decisions of this House, you have got to throw those ballots 
out. You must do that or reverse the Hawaiian case. 

Mr, Chindblom. Do you recall where you discussed the Hawaiian! 
case in your brief ? 

Mr. AYickeesham. No ; I do not, but I did discuss it. 

Mr. Grigsby. It is on page 111 of his brief. 

Mr. WiCKERSHAM. Mr, Grigsby testified something about the in¬ 
troduction of this Australian ballot law in the Territorial Legisla¬ 
ture of Alaska, and he says that my friends are all opposed to it, and 
he and his friends are the few people who have ever been in favor of 
clean government and clean elections up there. They were in favor 
of the Australian ballot system. 

Mr. Grigsby. No ; I claim that you were in favor of it, but all of 
your friends were opposed to it. 

Mr. AATckersham. It was introduced in the House by Dan 
Driscoll. 

Mr. Grigsby. You said it was not valid, and I admit it. 

Mr. AATckersham. The record shows, I think, that it was bill 
No. 1, and that is right, and I oppose the bill now, as it is before this 
committee. It was not introduced in the Alaska Senate, as you 
suggested. 

Mr. Grigsby. Everybod}^ voted for it, did they not ? 

Mr. MTckersham.*^ But when it went to the Senate the Senate 
was very largely opposed to it. I will not mention any names, but 
it came back to the Alaska House with a lot of amendments, which 
Mr. Grigsby in his opinion says were void, and almost rendered the 
whole bill illegal. If it had not been for those amendments, there 
would be no question, but he says that on account of the amendments 
the whole bill was illegal, or, at least, that all of those amendments 
were illegal. 

Not only does Mr. Grigsby say that my friends were opposed to the 
Alaska Australian ballot law, and held it up originally, but when he 
began drawing this brochure, under which he held the special elec¬ 
tion on June 3, where he is elected by a guess, and without any com¬ 
pilation of the returns, he repealed the Australian ballot law for that 
election only. The bill is here before you, and in that law this 
Australian ballot system in Alaska is repealed, so far as that election 
is concerned. I am going to turn back here and show vou just where 
that is. 

Mr. Grigsby. I repealed it anyway; I had to repeal it. 

Mr. AATckersham. You admit you did? 

Mr. Grigsby. Yes; I had to repeal it. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 335 


Mr. WiCKERSHAM. No; you did it yourself. 

Mr. Grigsby. Thank you; you said it was void, so I repealed it. 

Mr. WiCKERSHAM. He says there were no illegal votes received in 
Cache Creek; that there is no proof of it, he says. Now, the proof 
is, and there is no question about it, there is no denial of it, no 
attempt to explain it in the record, that the election at Cache Creek 
was held between 4 o’clock, when they got up and had breakfast, 
and 10 minutes after 5, when the whole cavalcade started out over the 
snows for the outside world. That is the testimony of Ked Mc¬ 
Donald, by the watch, and it is not denied by anybody. But Mr. 
Grigsby says there were others there who did not testify to it. That 
is true. I did not call all those fellows whom we wanted to go on the 
witness stand. We got every one that we could. There was no one 
left in the country. They had gone when we got there. Somebody 
told them they were going to be prosecuted, and we could not get any¬ 
thing out of them. They said they did not know, they could not state 
what time it was; that they left there by lamp light, and they went 
out over the snows in the morning, but they did not know what time 
it was. Mrs. AVheelock and Ked McDonald both testified to the facts. 
Mrs. Wheelock was not as accurate as Ked McDonald, who had 
charge of the movement of things. He was in charge of the move¬ 
ment of everything that morning, and he testified accurately as to 
the time these people left there. 

Mr. Grigsby has admitted those things, and that there were illegal 
votes cast there. It is just one of those little things that does not cut 
much ice. He says you have got to be liberal in these things up in 
Alaska, and give a liberal interpretation to these laws, so that he and 
his friends can hold elections as they please. If you want good gov¬ 
ernment in Alaska, and honest elections in Alaska, and you want the 
laws that you have enacted for the holding of elections yourselves 
honestly complied with, then you have got to comply with them 
yourselves. 

Section 15 of this act is very specific. Section 15 of the act of May 
7, 1906, being section 406 of the compiled laws of Alaska, provides, 
and I want you people to listen to the law you passed, and the law' 
as it is w'ritten for Alaska: 

That any i)erson who, by any means, shall hinder, delay, prevent, or obstruct 
any other i)erson from qualifying himself to vote or from lawfully voting at any 
election herein provided for, or who shall knowingly personate and vote or at¬ 
tempt to vote in the name of any other person, or who shall vote more than 
once at the same election, or shall vote at a place where or at a time when he 
may not lawfully be entitled to vote * * * shall be punished by a tine of 

not less than .$2()0 nor more than $1,000 or by imprisonment of not more than 
five years, or both, in the discretion of the court, and shall pay all costs, etc. 

So, if one votes at a time wdien he may not lawfully vote, then 
it is a felon}^, and he shall go to the penitentiary for it, and yet Mr. 
Grigsby says, Oh, if they did vote three or four hours ahead of 
time, and did leave the precinct before 8 o’clock, that does not make 
any difference anyway.” It makes a lot of difference. If Miey vote 
three or four hours before the time for the opening of tlie polls, 
and the law^ specifically provides that the polls shall be opened at 
8 o’clock ante meridian, and shall hold open until 7 o’clock ]iost 
meridian, and if you vote at any other time it is made a felony under 
this laAv, and any election officer who permits it is guilty of a felony. 


336 WICKERSHAM VS. SULZER (DBJCEASED) AND GRIGSBY. 


anybody who has anything to do with violating this law under 
those circumstances is guilty of a felony, so it is a mandatory pro¬ 
vision, and is made mandatory by a direct penal provision of this 
act, passed by Congress itself, and under such a law, of course, illegal 
votes can not be counted in any election. 

Mr. (jRiGSBY. You refer to the special election law, there ? 

Mr. WicKERSHAM. I am referring now to the Cache Creek situa¬ 
tion. 

The Chairman. Do you contend. Judge, that because a law has 
a penal clause attached to it, that it therefore becomes a mandatory 
statute for all purposes? 

Mr. WicKERSHAM. Absolutely. Of course, there are provisions in 
it which are not included within the penal provision, but so far as 
they are covered by the penal provision they are mandatory. I 
see now what you are asking, and I will change my answer. Not 
entirely; no; but so far as the provisions of the act are covered by 
the penal clause, they are mandatory. That is a more accurate answer 
to your inquiry. 

The Chairman. Then you mean that a penalty attached to an act 
for doing or not doing certain things would make it mandatory for 
that purpose? 

Mr. WicKERSHAM. Absolutely. 

The Chairman. Then it would not apply, or might not apply, in 
other respects. 

Mr. WicKERSHAM. When matters and things are not included 
within the penal clause, it might not be mandatory, but when they 
are included within the penal clause, or this section 15 of the act 
of Congress, then it is mandatory, but it may be that there are 
things in this law which are not penalized. They may, according to 
their relation to the subject matter, be either mandatory or directory, 
as the case and the facts may warrant. 

Mr. O’Connor. Do you think that when the penalty is for the 
failure to send election supplies into a precinct, and the prosecution 
is based upon that penalty, and a judgment had in the court, and the 
man sent to the penitentiary, that, in addition to that, the election is 
null and void in that precinct ? 

Mr. WicKERSHAM. Yes, sir; that is the authority all the way along; 
otherwise, just as the authorities all say, Mr. O’Connor, if an officer 
may hold out one precinct he may hold out others, and he may hold 
out enough to change the result of the election every time. 

Mr. O’Connor. I thought the penalty fixed, by sending them to the 
penitentiary, was a deterrent to prevent them from violating the law, 
rather than carrying the penalty to the election district, too. 

Mr. WicKERSHAM. That is true, so far as the election officer is 
concerned, undoubtedly; but assume, Mr. O’Connor, that there are 
a large number of precincts in an election district and the commis¬ 
sioners are corrupt, as many of them are, and can, by refusing to hold 
those elections, turn the tide of every election in Alaska, and there is 
no question about it; what are you going to do about it ? 

Mr. O’Connor. Send them to the penitentiary. 

Mr. WicKERSHAM. That does not cure the matter of the illegal 
election. That is only one of the things you may do. You may do 
both, and tlie authorities are all jone way on that. I have cited you 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 337 

authorities at great length in my brief and have read them to you at 
great length on this floor. 

Mr. Chindblom. Is that act of 1906 in the record ? 

^Ir. WicKERSHAM. Yes; and it is in the United States Statutes. 

Mr. Chindblom. I know; but is it printed in this record ? 

Mr. WicKERSHAM. Some parts of it are, and I think some parts of 
it are printed in my brief and some parts of it in Mr. Grigsby’s brief; 
and it is all in the United States Statutes, of which you must take 
judicial notice. You do not have to prove the statutes. 

Now, take the Fortymile district, for instance. There two pre¬ 
cincts were abolished. Steel Creek was abolished and the Jack 
Wade precinct was abolished. Those were the two places where 
the people lived, and it is testified to by Phillips and the men who 
went on the witness stand that they were the two large precincts; 
those were the precincts where the people lived; those were the pre¬ 
cincts where the population of that country was located. That is 
testified to in the record, and they were both abolished or added to 
to other precincts, and I read you Donovan’s order. For instance, 
he attached Jack Wade to Moose Creek, and he did not establish any 
polling place in Moose Creek, so there was no voting place in Moose 
Creek precinct nor Jack Wade, Tvhere the people were. As a matter 
of fact, they did vote at a little cabin 18 miles away from Jack Wade, 
up in the W'oods and in the mountains. That is where they did vote. 
There were two miners working claims in that neighborhood, and 
they got them in and voted them, when they knew where they were. 
But the people down at Jack Wade did not know where to go and 
did not go. 

At Moose Creek they knew that Jack Wade was 18 miles away 
from them, but they did not know^ where the voting place was. 

The same is true of Steel Creek, that was attached to Franklin, 
some 15 or 16 miles away. Of course, Franklin was a better known 
place, but there was no polling place established by this order at 
any of these precincts. They made three precincts out of five, and 
did not establish a polling place in any one of them, and the two 
precincts that w^ere abolished were two representative precincts. 

Mr. Grigsby. One of them w^as a Socialist precinct. 

Mr. AVickersham. In 1916, at Jack Wade, I received 8 votes, and 
Mr. Sulzer received 4, and at Steel Creek in 1916, I received 7 votes, 
and Mr. Sulzer received 1. Of course, the Socialist, as Mr. Grigsby 
says, had a larger majority in Jack AYade than I had. 

Mr. O’Connor. AATiat did the socialist poll in both of these pre¬ 
cincts that were abolished? 

Mr. AYickersham. In 1916, 6 or 7. 

Mr. Grigsby. In Jack AA^ade? How^ many in Steel Creek? 

Mr. AATckersham. I think 8 or 4. He says that there were 
no other precincts abolished, but there w^ere two other precincts 
abolished, and that is all shoAvn in Judge BunnelPs testimony Avhen 
he w^as on the Avitness stand. He abolished tAvo other precincts in 
the order he sent out. He abolished Cripple precinct, and Fish 
precinct. In 1916 I received 12 a otes in Cripple precinct, and Sulzer 
1, and in Fish I received 9, and Sulzer 1, so that all of the precincts 
abolislied in 1918, Avhere votes had been cast in 1916, Avere repre- 
sentatiA^e precincts, all four of them. 

181744—20-22 


338 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

“ Oh, well,” Mr. Grigsby says, “ There were not many votes cast 
there, and it Avould not make much difference.” It does make a lot 
of difference because in those four precincts in 1916 I received 36 
votes, and Mr. Sulzer only received 7. They were abolished in 1918, 
and I was cut out of 29 votes upon the face of the returns of 1916, 
and upon the testimony in this case, 16 votes in those four precincds. 

Mr. O’Connor. Did they vote in any other precincts? 

Mr. WicKERSHAM. No; the testimony is that they were 18 or 20 
miles away from Jack Wade and Steel Creek and they would have 
had to make a round trip of 28 or 34 miles. 

Mr. O’Connor. Does the testimony shoAv that they did not partici¬ 
pate in the election in other precincts? 

Mr. WicKERSHAM. It does, because the days were very short. Mr. 
Grigsby tried to give you the condition, that the day at Cache Creek 
started very late or very early, I forget which it was, and it was a 
long way over to the other place. The day was long over at Jack 
Wade and short over at Cache Creek, although they are in the same 
latitude. They could have gone 34 miles round trip, and voted over 
at Jack Wade or Steel Creek. Well, they all testified they could not 
do it; that they would have had to go over there and stay all night, 
and think of 35 or 40 people going over to Moose Creek and remain¬ 
ing all night in a cabin where 2 men live, and that was the only 
thing there was there in the way of accommodations. It would take 
them a day to go over and a day to come back and cost them $8 to 
make the trip. That is the situation of this matter, gentlemen. 

I want to call your attention just for a second again to this Dono¬ 
van order. The first paragraph of section 5 of this act provides that 
all of the territory in each recording district shall constitute one 
election district; that in each year in which a Delegate is to be elected 
the commissioner shall at least 30 days before the date of said first 
election and at least 60 days before the date of each subsequent elec¬ 
tion issue an order and notice subdividing the district into voting 
precincts and pointing out the polling places. That order provides 
for those things, and they must be done 60 days before the election. 
The proof is here in the record, and you will find it in full in this 
record, that it was done just 35 days before. The order was made 
only 35 days before, and Judge Bunnell on the witness stand was 
asked about this, he being the judge in the district, and whether 
they had to do these things, and he said yes, it was the understanding 
that that order had to be made 60 days before the election to make 
it legal, and the notice following had to be made 30 days before the 
election. 

Those matters are on the question of this Fortymile district. The 
fact is that they knew of this penal clause of this act of 1906, and 
the failure of that commissioner in the Fortymile district to make 
an order in compliance with the law was a penal offense, and he is 
guilty of a crime. 

Mr. Hudspeth. Your contention is. Judge, that the entire vote of 
that district should be cast out ? 

Mr. WicKERSHAM. Yes. 

Mr. Hudspeth. On account of his failure to make the order? 

Mr. WicKERSHAM. In that precinct it is much stronger than it is in 
the other, because in this district he did make the first order. We 
do not know anything about the second. 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 339 


Mr. Hudspeth. As I follow you, you consider the district a unit? 

Mr. AYickersham. Yes. 

Mr. Hudspeth. And if an election officer fails to comply with the 
law, relative to one precinct in that district or that unit, it casts out 
the vote of the entire district? 

Mr. WiCKEKSHAM. If he does it in a fraudulent way, and, if you 
remember, I read you authorities from Texas and from other States, 
and the authorities are uniform on that matter. 

There is no (question about it. If in the jurisdiction the officers 
who have duties to perform according to the statute fail and refuse 
to follow the law, and do it fraudulently, as they did in these two 
cases, with the purpose of reversing the effect of the statute, if it 
was all done for that purpose, then their act is fraudulent entirely 
and not fraudulent in part. 

Mr. O’Connor. Fraudulent entirely as to the jurisdiction. 

Mr. WicKERSHAM. Yes; as to that jurisdiction. 

Mr. O’Connor. Would not fraud in the jurisdiction affect the re¬ 
sult throughout the Territory? 

Mr. WicKERSHAM. Yes. 

Mr. O’Connor. Why not extend the fraud, then, to the Territory? 

Mr. WicKERSHAM. If an officer is in a position in Alaska to throw 
out different precincts by refusing and his man gets 10 votes and 
the other man gets 10,000 votes, you would not throw out the man 
who got the 10,000 votes? 

Mr. Grigsby. That would be enough to affect the result. 

Mr. WicKERSHAM. Not on the theory we are talking about. 

Mr. Grigsby. Yes, on that theory. 

Mr. Hudspeth. I remember one contest in Texas, where it came 
before the Senate, on the ground that the election officer failed to 
write his name across the ballots. The law requires that he shall 
do so. In the contest, as I recall now, the committee refused to 
throw out those ballots. 

Mr. Grigsby. It was probably not a mandatory proposition and it 
would probably perpetrate a fraud to do it. 

Mr. Hudspeth. There was no evidence of fraud in that. 

Mr. WicKERSHAM. It might be an injustice, and not call it fraud. 
But no election committee will throw out election precincts against a 
man who did not commit a fraud, because the other fellow did com¬ 
mit a fraud. That would be giving a premium upon fraud. 

Mr. Hudspeth. Yes; that was held at that time. 

Mr. WicKERSHAM. You will find that Rowell has 20 cases cited 
upon that point; so that the House has committed itself to doing 
justice in those matters and not injustice. 

Noav, Judge Bunnell, at page 613 of this record, testified as follows 
[reading] : 

Q. And you state that from your reading of the law in regard to posting the 
notices no specified time prior to election day is required under the law?— 
A. No; I didn’t state that. My understanding is that the notices should be 
posted 30 days before the date of the election, and that the order redistricting, 
under the compiled laws, has to be made 60 days prior. 

So that that is a complete statement of the law by Judge Bunnell. 

That was not done in this district, and it was done fraudulently, for 
the purpose of gerrymandering this district. They talked to Dono¬ 
van about it, and Donovan said, “If I put Jack Wade onto Moose, 


340 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

or Steel onto Franklin”—I have forgotten which one, now—“the 
people will not go there and vote.” So that he had that distinctly in 
his mind, and took advantage of the situation and fraudulently dis¬ 
franchised those people. 

Now, the committee ought to do one thing or the other—either 
throw the precincts in his jurisdiction out or allow me the votes of 
those people who came there and testified that they would have voted 
if that had not been largely gerrymandered so that they could not 
get to the polling place. The people of that district were up in arms 
about it, and some who came there testified that they would vote for 
Sulzer, but I have a clear majority of 16 votes. I am entitled to have 
those 16 votes or to have the precinct thrown out. I would prefer 
to have it, as these people have testified that they would have voted 
if they had had the opportunity, but the committee itself, of course, 
Avill lay down a rule. 

Now, I want to talk to you about a rule of residence. I want to 
call the attention of the committee very briefly to a general rule. 
It is not in Rowell, but I can tell you where it is. I have it cited. 

The Congress had laid down this sort of a rule—that with respect 
to unmarried men the rule is much more liberal with regard to theii 
place of residence than it is with respect to married men; that if an 
unmarried man is working out on the railroad at a camp where he 
does not intend to reside at all, and does not make any pretense that 
that is his place of residence, but he has no other home, and he is there 
30 days in the precinct and a year in the State or Territory, he may 
vote in the place where he is working on the railroad, probably living 
in a camp or in a box car, because that is the only home he has got. 
They have gone that far with respect to unmarried men. But in the 
same opinion and in the same decision, which is an opinion of the 
House of Representatives, they held a married man is in a different 
situation; that a married man resides where his family resides; that 
if he has a home and his family is at that home, and he goes back 
there from time to time, that is his place of residence, and not the 
box car where he is living while he is working on the railroad. 

Now, the committees of the House have laid that rule down very 
clearly, and they establish it upon the basis that it is the home which 
is his residence, where his family reside, where his wife and children 
live; and that is undoubtedly the rule laid down by all of the authori¬ 
ties, perfectly clear; and, it is in McCrary and other authorities; 
and the basis of that is fixed on the fact that it is the home; the home 
is the residence. 

Now, for instance, we called attention here at one time to Gov. 
Riggs, and upon my testimony before the committee, without being 
sworn, I called attention to the fact that in 1916 Gov. Riggs resided 
here in the city,of Washington until May, 1916, and in May, 1916, 
he took his wife and children from the place Avhere he had lived here’ 
several years, and Avhere the children Avere born—as I shoAved you 
by ex parte testimony—and took them to Alaska, and he and^his 
Avife voted there in NoA^ember folloAving. 

The theory of the opposition is that Gov. Riggs liA^ed in Alaska 
because he had been up there Avorking on the railroad. The fact is 
tluit he had not a residence in Alaska, but his residence Avas here with 
Ids family. The decision of the committees of the House decided 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 341 


the question as a matter of fact and law, that the home of a man 
is with his family; and that his home was here in Washington, and 
that his work there was temporary work; and when he took his family 
up there, unquestionably thereafter his domicile was instantly trans¬ 
ferred to Alaska. This is in McCrary instead of in Eowell. 

Mr. Grigsby also makes the point that some of these soldiers en¬ 
listed in Alaska and resided in Alaska at the time of their enlistment, 
and that their enlistments in Alaska were there. Take the enlistment 
of Campbell. He is the shining example of that class. 

XoAv, I want to call the attention of the committee to what I have 
said about Campbell in my brief, at page 84. Campbell’s deposition 
you Avill find at page 256 of the record. He was a sergeant in the 
Signal Corps of the United States Army. He enlisted February 14, 
1909, at Columbus Barracks, Ohio; and I call your attention now to 
the certified copy of the record of enlistments of this soldier made by 
the War Department, an official statement consisting of, first, the 
name; second, the date of original enlistment; third, the date of 
reenlistment; and fourth, the place of residence at the time of enlist¬ 
ment. Now, that is a certified statement of the Secretary of War, 
that his place of enlistment at that time was Columbus (Ohio) Bar¬ 
racks, and that his residence was Norwalk, Ohio, at the time of his 
enlistment. He reenlisted at St. Michael, Alaska. AVhen they took 
Ids deposition, my attorneys, through some oversight, put the question 
to him like this: 

Q. state your name, ai;e. ami occupation.—A. Name. .Tames ]M. Campbell; 
ajfe, 29; occupation, soldier. 

Q. Were you a soldier in the Ibiited States Army November 5, 1918?—A. I 
was. 

Q. When and where did you enlist prior to last-named date?—A. I enlisted 
at St. IVIichael, Alaska, February 11. 1915. 

Cy Were you a resident of Alaska when you so enliste<l?—A. I was. 

And upon that basis Mr. Grigsby now asserts that he was a resi¬ 
dent of Alaska at the time he enlisted, and therefore that he had a 
right to vote, when the record all shows perfectly plain, with respect 
to him and three or four others at the time the mistake was made, that 
his residence was in a foreign State, and that this was a reenlistment 
instead of an enlistment. 

Mr. Chindblom. Do yon think the records agree with his own 
testimony ? 

Mr. WicKERSHAM. Yes; they agree with it. They do not contra¬ 
dict it. 

Mr. Chindblom. The record relates to the prior enlistment. 

Mr. WicKERSHAM. Yes. You figure out the time of that prior 
enlistment, and you will get him right down to that minute. 

Mr. Grigsby. Where did he vote? 

Mr. WicKERSHAM. That is all shown there. 

Mr. (trigsby. He just went there. 

Mr. WicKERSHAM. That is the way in respect to him and several 
others of these men. I wanted to get that straight with the com¬ 
mittee, because I did not want the committee to think that it was so 
merely because Mr. (xrigsby says so, that those men enlisted in 
Alaska. They did not. The record shows where they enlisted. 

He also makes reference to Morgan’s affidavit. Morgan’s affi¬ 
davit you will find mentioned at page 684 of the record and page 


342 AVICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


86 of my brief. Page 684 of the record is the testimony of Col. 
Lenoir. 

Mr. Grigsby. I call attention to the fact that Mr. Wickersham’s 
time is up. I do not want to object to his continuing, but I want it 
noted in case I should Avant to go a little over my time. 

The Chairman. You have five minutes more. 

Mr. Wickersham. I haA^e only fiA^e minutes left? 

The Chairman. Yes. 

Mr. Wickersham. I think it is much more desirable to get this 
thing fairly before the committee; but I beg to call attention to one 
matter, and that is this Ames case. I have examined the record in 
respect to this Ames matter A^ery carefully. I find that Mr. Wilson 
did not say that the Ames case had been decided one way or the 
other. He referred to it as stating the correct rule of law; that is 
all. 

Noav, I liaAe looked it up A^ery carefully, Mr. Chairman, and I am 
sorry that my time is so short, but you Avill find the Ames case 
stated in the Senate Elections Committee cases from 1789 to 1913, at 
page 375. You can not understand the Ames case unless you take 
the case immediately preceding it, the case of H. H. Keval. This 
Avas in Mississippi in reconstruction days, and Ames was a major 
general in the Union Army in charge of military affairs in Mis- 
sisippi. He was the military goAwnor of Mississippi at that time, 
and he aided and assisted, as the record shoAvs, in securing the election 
of a Negro legislature in Mississippi, and when they had that, they 
elected a Negro one of the Senators, and they elected himself, Ames, 
as the other senator, and the record is all right here together. Ames 
certified to the election of Keval, Avho Avas seated first; and then, 
when there came the fight on Ames, of course Keval was there to as¬ 
sist Ames in getting through. 

Noav, I will not go any further with that, because I want this com¬ 
mittee to examine those matters. If there is anything that will bring 
the blush of shame to a Kepublican, or to a Democrat either, it is 
the record of those two Senators here; and then in Mississippi, where 
the Negroes Avere herded by the bayonets of the general in command, 
by the military government of the unhappy people there, and in that 
election he elected a Negro and himself as Senators. It was so shame¬ 
ful that the entire personnel of the Judiciary Committee of the 
United States Senate reported against him. Conkling and Edmunds 
and Bayard and Thurman and Lyman Trumbull were on that com¬ 
mittee, and they reported against him, that he ought not to be seated, 
and if you Avill go through this record you Avill be amazed by the 
statements made by Thurman, and by Garrett Davis, of Kentucky, 
and Conkling and Edmunds, and others of those constitutional law¬ 
yers, Avho Avere the greatest that eA^er sat in the United States Senate. 
They Avere all agreed that there was but one side to the laAv of the 
case, and I want to read you very briefly what Conkling said. This 
is on page 2348, part 3, Congressional Globe, second session. Forty- 
first Congress. It is very brief. [Keading:] 

We are disputing in the face of an unbroken current of authority, legislative 
and judicial, which says that the bodily presence of Adelbert Ames in the State 
of Mississippi is a fact entirely immaterial in the disposition of this issue. We 
are disputing against a current of authority Avhich says that if the residence 
of Adelbert Ames is to be found at all in the State of Mississippi, it is to be 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 343 


foiiiut without reference to the fact of his bodily presence, that being involun¬ 
tary and constrained. Standing in the presence of these authorities put down 
to acknowledge these universally asserted principles of law, we are disputing in 
order to find a respectable apology in the first place for placing upon the record 
a proposition that Adelbert Ames in fact and in truth established a residence 
in the State of Mississippi, when in fact and in truth he did no act at all; and 
in the second place, we are in quest of an excuse for asserting that Adelbert 
Ames formed and entertained the intention necessary to go with such an act as 
all declare to be absent; and in this quest of an excuse we are reduced to the 
desperation of hunting it out amid these scanty, sterile, and unproductive ele¬ 
ments. 

The Chairman. Your time has expired, Judge. 

STATEMENT OF MR. GEORGE B. GRIGSBY—Resumed. 

Mr. Grigsby. The committee can read the record of the Ames case, 
so that Mr. Wickersham will suffer nothing from not being able 
to present that in detail before the committee. The point on which 
I cited the Ames case was that the Ames case was cited as an au¬ 
thority for throwing out soldier votes in Alaska. The report of 
the Senate committee, which is contained in this volume which Mr. 
Wickersham has shown you, was cited as an authority by Riley 
Wilson, and then again by Mr. Wickersham, before this commit¬ 
tee, and the very volume itself shows that the Senate of the United 
States overturned that decision by a vote of 40 to 12, after thorough 
and long-continued debate, able lawyers on both sides discussing 
the case; and they nowhere in their decision violated the principle 
that mere bodily presence of a man as a soldier is not evidentiary 
of his residence, either for voting purposes or as qualifying him to 
occupy a seat in the United States Senate. You gentlemen can read 
the case. 

Now, I have only 30 minutes, and I shall hurry along and answer 
one or two new points made by Judge Wickersham. 

In response to Mr. Chindblom’s question as to whether any other 
Territorial legislature ever had the power to change the rule gov¬ 
erning elections for the office of Delegate to Congress, Mr. Wick¬ 
ersham said no; they did not have. In the Revised Statutes, section 
1862, it is provided that— 

Every Territory shall have the right to send Delegates to the House of Rep¬ 
resentatives to serve during each Congress, who shall be elected by the voters 
in the Territory qualified to elect members of the legislative assembly. 

The Revised Statutes, section 1860, gaA^e to the legislature the 
right to fix the q^ualifications of their electors to elect members of 
the legislature. Consequently, the legislature had the absolute power 
at all times after the passage of this act, in all Territories there¬ 
after organized, to fix the qualifications of voters; and not only 
that, but it is provided that at all subsequent elections therein, as 
well as all elections for delegates in all organized Territories, such 
times, places, and manner of holding such elections shall be pre¬ 
scribed by the law of each Territory. 

Now, he wants you to believe, notwithstanding the third section of 
the organic act extends to the Legislature of Alaska the right to 
amend all laws of Congress relating to Alaska, except those in which 
there was an express prohibition, that they can not amend that act of 
1906 relating to elections simply because in this organic act there 


344 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

was incorporated a provision which did not belong to it, changing 
the date of the delegate election and continuing the existing laws 
regarding the conduct of that election; and Mr. Wickersham places 
himself in the attitude of coming before you and saying that what he 
calls in Alaska his “ full Territorial goA^ernment bill,” the one he 
made his campaigns on, did not e^ en giA^e the people of Alaska the 
ordinary poAvers that Avere extended to the people of CA^ery other 
territory. 

Noav, the longer he talks the more I am conAunced that I Avas Avrong 
in my original opinion which is in my published report, in Avhich 
I express the opinion that the legislature could not change the qauli- 
fications of A^oters in Alaska. I am still in doubt; but as I said in 
my main statement in this case, I Avill be pleased to be overruled. 

I also said it did not make much difference in this case hoAv many 
A'Oters Avere not residents in the precinct, because they Avere about 
equally divided politically. 

Noav, I stand Avhere I did before on this Nushigak case. If there 
is a scintilla of evidence in the testimony of Nash, Avho is the only 
Avitness Avho testified Avith regard to Nushigak, to the effect that the 
United States Commissioner at Chogiung failed to appoint election 
judges at Nushigak, if there is a scintilla of evidence to that effect, I 
am Avilling that the election in that whole recording district be 
throAvn out. I do not ask that you find sufficient evidence to find it 
as a fact, but if you find a scintilla of eAudence. There is his testi¬ 
mony. I read it line for line. Mr. AVickersham stood here a few 
minutes ago and told you that the supplies referred to, Avhich the 
witness Nash testified that the commissioner did not take OA^er. Avere 
the orders appointing election judges. If you Avill read the testimony 
you AAull find that lie referred to the supplies Avhich Avere supposed to 
haAe arriAed in July from the clerk of the court and not to the 
notices of election or order appointing judges. 

Furthermore, if you Avill read the statute Avhich places the duty cm 
the United States commissioner Avith respect to providing for the 
election, you Avill find it provided that at least 30 days prior to the 
date of the holding of such election the commissioner shall select, 
notify, and appoint among the (qualified electors in each voting pre¬ 
cinct three election judges in each precinct. He can do it 30 days 
before or more than 30 days before. Noav, the Avitness Nash testified 
about AA hat he did in the Avay of creating those tAA’o a oting precincts 
in 1918; that is, Chogiung and Nushigak. On page 77 of the record 
Nash testified as folloAA’s: 

Q. Do you know whether any notice was .<;iven of the hol(Uii.u- of election or 
not:—A. There was a notice iriven in each place. 

Q. In eacli i)recinct?—A. Yes. I know there was one in ours, and they 
claimed tliei-e was one in tlie otlun*. T <Ud not see it. I was not across the river, 
hilt they clainuHl they had noti^*e. 

Noav, that notice also must be published oati- there 30 days before 
the election, and must be issued by the commissioner, and if it got 
over there, Avhich the testimony of Nash says it did, the commissioner 
must haA^e either taken it OATr there or sent it over there, and Avhen 
he did that he could Avell, and probably did, and the presumption of 
laAv is that he did, also appoint and notify the judges of election. 

The testimony of Nash Avith reference to the visits of this com¬ 
missioner OA’er there afteiAvards is as to trips betAveen the 7th of 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 845 


October and thereafter, and it all relates to whether he took any elec¬ 
tion supplies over or not. Now, all the evidence in the case shows 
that he did not have any election supplies to take over. There is no 
law anywhere, either congressional or Territorial, requiring him to 
deliver any supplies whatever to the election boards, except the legis¬ 
lative act, which requires him to deliver the Australian ballots them¬ 
selves, and they did not arrive in Chogiung from the clerk of the 
court, and the voters in Chogiung also used a homemade ballot. 

I will go further and I will say that there is not a scintilla of 
evidence in this record from which an inference can be draAvn that 
the United States commissioner at Choggiung failed to do any act 
or thing required of him by laiv—not a scintilla^—and yet the hon¬ 
orable judge puts into the mouth of this witness in three different 
places in his brief the direct statement that the witness Nash testi¬ 
fied that the United States commissioner at Choggiung failed to 
appoint election judges at Nushagak, I say he never said anything 
of the kind, and there is not a scintilla of evidence that he so failed; 
and if there is a scintilla of evidence that he did, I want you to find 
that he did as a positive fact; and I rest the vote in that j^recinct 
on that as a positive statement. And when he hauled in this testi¬ 
mony that Nash had not given and put it in the mouth of this wit¬ 
ness in order to sustain the theory of his case, which rests entirely 
upon the nonappointment of these election judges, when he did that 
without any foundation in the record, I say that you have a right 
to distrust him in all the rest of his statements. 

That is not the only point in his case where I have tripped him 
up and showed you that he has misled you. The printed record will 
show that, and I do not care to go into it again. 

The judge says I do not know what the facts are in this case. I 
will retort by saying that he either does not know what the law is, or 
he pretends "that he does not. Now, he tells you what a mandatory 
statute is, and he says the test is whether there is a penalty attached 
to the nonperformance of the duty; that that determines whether or 
not a statute is mandatory. 

Everybody knows that when a duty is to be performed under 
penalty for nonperformance, and the penalty prescribed for the 
violation of that duty, that law is mandatory as to the official; but 
what the chairman was talking about and what you gentlemen are 
interested in is whether the law is mandatory or directory with 
respect to acts performed under it. Now, we have a law that says 
that an election shall be held on November 5, 1918. We have another 
law which say that there shall be a notice of election published 30 
days before the election. Then we have a law which says that the 
failure of an official to perform any duty prescribed and placed upon 
him by this act shall be guilty of a crime. 

The law is mandatory upon the official to publish that notice. If 
there is no notice of election but they hold the election just the 
same, what becomes of your law with respect to the publication of 
this notice? The courts hold that it is directory. Whenever an 
election is fixed by law, unless you can show that cn account of 
lack of notice a sufficient number of voters are disfranchised to 
affect the result, the rest of the votes according to all the authori¬ 
ties, are counted as legal votes. In Fairbanks, the gentleman’s resi¬ 
dence, in this last election, there was no notice of election, and I 


346 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 


knew it before I commenced the preparation of this case; but 1 
found it was immaterial. The judges were appointed. Everybody 
up there that was entitled to vote, voted. The law requiring the pub¬ 
lication of a notice was directory. If it had been mandatory, the 
vote in Fairbanks would have to be thrown out, for that means that 
any act done by virtue of that la’w not in compliance with the 
full terms of the law is void. That is the dilference between a man¬ 
datory and a directory statute. 

I stated that the Australian ballot law was mandatory so far 
as the form of the ballots was concerned. Mr. Wickersham just 
stated that I said it was mandatory in all respects. My language 
is before you. I limit the application of my language particularly 
and restrictively to the Australian ballot fixing the official form of 
ballot, as you will see. Now, if you examine the authorities with 
relation to the Hawaiian case and Australian ballot act, where the 
numbers ^vere not detached from the ballot, as set forth in my brief 
and in the opinion, you will find that all the authorities bear out 
my position, that unless you have a mandatory statute prescribing 
the effect of the failure to detach the numbers and a law against 
distinguishing marks, the authorities all, without exception, hold 
that a failure of the judges in this respect shall not deprive an inno¬ 
cent voter of his vote, whether or not the judges are more or less 
willful or negligent. There have been no authorities whatever cited 
by the gentleman to the contrary, except the Hawaiian case, where 
they did have a law prescribing that any ballot which had on it any 
mark, symbol, or device not authorized by the statute should be null 
and void. 

There was no authority for placing any numbers on the ballots. 
Therefore, having numbers left on them when they were cast, which 
is prohibited in express terms by the statute, the committee on 
elections threw them out, and threw them out for that reason. 

Now, gentlemen, I have had what I consider sufficient time to present 
my case. There is just one other thing I want to mention, and then 
I will close. The judge testified, as he admitted he would, that there 
were two other precincts in Alaska where the voters were disfran¬ 
chised because of the action of Judge Bunnell. Now, Judge Bunnell 
has nothing to do with the creation of voting precincts. He testified 
he had never been in the Fortymile precinct; that it is 600 or 800 
miles away from Fairbanks; and he testified with respect to nothing 
material about Cripple Creek and Fish Creek precincts, where the 
judge said he lost 20 or 40 votes. I refer to page 610 of the record, 
where the testimony is as follows [reading] : 

There is also a statement that some fradnlent action was had by the com¬ 
missioner in the election districts wherein Cripple Creek, Fish Creek^ and other 
voting precincts in the fourth division are situated. About that I have no 
knowledge at all. I don’t know where the Fish Creek precinct is, unless it is 
a precinct somewhere about 20 miles from Fairbanks. 

There is no evidence in the record anywhere that any voter in any 
precinct, except Jack Wade and Steel Creek, was deprived of his 
vote by reason of any redistricting of recording divisions. 

Mr. Chindblom. Was it not Judge Bunnell who wrote a letter to 
the commissioners of the recording districts on account of shortage 
of funds? 


WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 347 

Mr, Grigsby. No. Bunnell’s clerk wrote the letter—Bunnell’s tes¬ 
timony showed that—that they should exercise due economy in refer¬ 
ence to the conduct of the election, and calling the attention of one or 
two commissioners to the fact that where there were not but 5 or C> 
voters a precinct should not be created, because they had run short 
of election money, as you say. That is all contained in Judge Bun¬ 
nell’s testimony. Judge Bunnell testified that his clerk wrote this 
letter and submitted it to him and he saw it and approved it before 
it went out. Now, the only act that the record shows was done with 
respect to that was the redistricting of the 40-mile recording district, 
where two precincts, each of which contained less than 30 legal 
voters, were abolished, and attached to other precincts. 

Mr. Chiindbix>m. As a matter of fact, all that Judge Bunnell would 
have to do with the matter would be the appointing of the commis¬ 
sioners in the recording districts, would it not? 

Mtt’. Grigsby. That is all he would have to do with it; and Judge 
Bunnell is without any fault in the matter whatever, as he is without 
anv fault concerning any matters in either this election or the election 
of 1916. 

Mr. Chindblom. But the writing of this letter was not a duty im¬ 
posed upon him by law; was it? 

Mr. Grigsby. No ; this letter was a letter sent out by the clerk of 
the court with the election supplies. He calls attention to the fact 
that there is no reason for going and buying a new ballot box in 
every election, and calls attention to other economics that might be 
practiced; that their funds for election expenses have been exhausted, 
and that they had had trouble getting their accounts through and 
paid, and that is cited, and he in this letter calls the attention of one 
or two commissioners to the fact that where there are only 5 or 6 
voters, there should not be a precinct created. The law requires 
that there shall be 30 voters in a precinct before it is organized in 
that place. 

Mr. O’Connor. How many precincts are there in Alaska ? 

Mr. Grigsby. One hundred and sixty-four. 

Mr. Chindblom. And 9,000 votes were cast in this election? 

Mr. Grigsby. Yes, sir; nine thousand two hundred and some odd. 

This is a long record, and we have both reviewed the record at 
length. I have endeavored, in order to present a contrast to my 
opponent, to confine myself to the absolute facts both as to the 
evidence in the record and honest opinions as to the law. I have 
not created any Indian reservations out of the sky, and I have not 
put any testimony into the mouths of any of the witnesses that has 
not been testified to. If you will examine my brief and the judge’s 
brief, you will find that I accuse him of deception with respect to 
every point of contention in his case, and prove it on him. So that 
I can demonstrate it, arguing the points separately. If he does 
not practice any deception with regard to the point itself, he practices 
deception in his manner of trying to get you gentlemen to believe 
that the irregularity or defect, or whatever it was, was a part of a 
general criminal scheme hatched by the Democratic machine in 
Alaska in order to rob him of this office. 

.Now, you have to believe that, in order to sustain his case, be¬ 
cause there is no one of his contentions that would change the result 


348 WICKERSHAM VS. SULZER (DECEASED) AND GRIGSBY. 

of this election; there are no two of his contentions that will change 
the result of this election. The theory of his case is to convince 
you that on general principles he has been wronged; that there has 
been a conspiracy to wrong him; that to every act which worked 
to his disadvantage there was a criminal motive attached, a wrong¬ 
ful, guilty motive; and ^^igjaidge has worked himself into a frame 
of mind where^he- Ididroughly believes in guilt. He absolutely is 
overmastered by the presumption of guilt, the opposite of the one 
which should actuate a man who has sat on the bench where people 
have been tried for their lives and liberties, and where the pre¬ 
sumption of innocence doctrine was uttered by him in every in¬ 
struction he ever gave in a criminal case. 

Xow, show me any character in this tragic conspiracy of his who 
is presumed to be innocent. On the contrary. Judge Bunnell in 
his brief is sentenced to two years in the penitentiary. Gov. 
Kiggs is sentenced to five years in the penitentiary; and the United 
States Army officials, half a dozen of them, get various terms of 
imprisonment in the jail or the penitentiary, and fines without num¬ 
ber. That is the theory of his case, and if you will study the case 
you will discover it, if you have not discovered it already. I am 
content to rest on the facts and the law in this case. I thank you, 
gentlemen. 

(Thereupon, at 6.15 o’clock p. m., the committee adjourned.) 


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